As any manager knows, hiring qualified employees for a job is a continual challenge. The cost of turnover, including the time spent finding and training new employees, makes it worth it for many employers to take the time and effort to make sure the employees they do hire are the right fit.
Many companies are in a constant process of refining and improving upon their hiring procedures and identifying ways to make it easier to select qualified employees.
One technique that some employers use to weed out potential candidates who may have red flags in their history is to conduct background checks on potential employees. While background checks are certainly permissible under the law, there are important requirements that every employer should know.
Background Checks and Consent in Puyallup
The first step in conducting background checks is knowing when you, as an employer, need the consent of an applicant or potential employee before beginning the background check process.
Much of the information that an employer might want to obtain during a background check requires the consent of a potential applicant. For example, school records are typically protected by federal education privacy laws and require the authorization of the student or former student to obtain.
Similarly, if you are looking to hire an outside firm or organization to conduct your background checks (such an investigative firm that conducts criminal background checks), you must notify a potential employee before you do so. You must also explain to them how you might use this information in employment related decisions.
While employers can certainly try to obtain limited background information about an employee without his or her consent, the general best practice is simply to get the approval of the employee beforehand. This allows the employer to obtain more comprehensive information to review and analyze and allows the applicant to withdraw from the process entirely if he or she has information they don’t want disclosed.
Be Particularly Careful with Credit Information
Some employers like to retrieve credit information for potential employees in order to find out whether there are bankruptcy or credit issues in their past that might be indicative of future problems. While this is allowed, pulling credit information comes with special requirements that must be carefully followed.
The Fair Credit Reporting Act governs the process of obtaining credit information on individuals. Washington state has also adopted the procedures of the Fair Credit Reporting Act for its own laws. Washington requires that any employer who wants to obtain credit information must first notify the employee in writing that their credit report may be obtained during the background process or get written authorization from the employee to obtain such information.
After receiving credit information, the employer must first notify the employee if it intends to use the credit information it obtained to make an adverse employment determination. This notification is meant to give the employee time to review the information obtained and make any corrections to the credit information that he or she believes to be erroneous.
Finally, under Washington law, credit information can only be used in certain ways. The employer may use the information if:
- it is substantially related to the job and the employer explains the reasons for using it writing; or
- it is required by law.
This means that, while employers hiring for accounting or fiscal management positions may use credit information substantially related to the requirements of these jobs, it is less likely that credit information can be factored into employment decisions for social service or health related positions, amongst others.
Use of Criminal History Under Washington Law
Federal law places very limited restrictions on the use of criminal records by employers. Employers are free to use such records as long as they do not engage in discriminatory practices when doing so.
Washington, by contrast, has imposed more significant restrictions on the use of criminal records in the background check process. First, in Washington, employers may not seek criminal records in the initial stages of the hiring process. Instead, they must first determine that the applicant is otherwise qualified for the job before asking for such records.
This means, with certain limited exceptions, that employers cannot ask potential employees about their criminal histories on application forms, ask them to disclose their criminal backgrounds as a precursor to further review or interviews, or tell potential applicants that they will be disqualified if they have a criminal history.
Washington also holds that employers must treat potential applicants’ vacated records as if they never existed, that employers must provide notice to applicants before seeking their criminal records from a third party investigator, and must provide notice before denying employment based on the information obtained.
Finally, the Washington Human Rights Commission has also advised employers to acknowledge that the consideration of arrests and convictions in the employment process may have a disproportionate impact on minority candidates who are more likely to have been targeted by law enforcement.
In order to avoid the possibility of racial discrimination, the Commission recommends that employers only consider arrests that have occurred within the last ten years and ask questions to determine the ultimate outcome of that arrest and whether charges were dismissed or dropped. Likewise, the Commission counsels that employers should only ask about convictions if they occurred in the last ten years and are reasonably related to the duties of the job.
Washington Attorneys Ensuring Your Hiring Processes Are Compliant with the Law
Every employer wants to find the best possible employee for their jobs. This often requires gathering as much information as possible about potential applicants and evaluating their strengths and potential weaknesses. Employers who seek to do so through background checks must be careful to remain in compliance with federal and state law and to avoid FCRA violations or discriminatory practices.
If you are considering background checks but want to make sure that your process complies with all applicable laws, the employment lawyers at Bolan Law Group are available to assist you. For more information or to schedule an initial consultation, contact us online or at (253) 470-2356.