Know the Law: Performing Online Background Checks

Business owners are always looking to save money. We know that employers can reduce their risk of legal exposure by implementing background screening programs and that these programs can result in savings for a company despite the cost of the background check itself. Employers understand this, but so many are tempted by the ads that are sent to them via email or appear on a website, inviting them to "Find sex offenders in your neighborhood." Technology has made getting information on a person as simple has browsing the web. Business owners need to be aware of the consequences of screening candidates online.

Quick, easy and cheap background checks are tempting to the small business owner. The ability to find out if a prospective employee was ever convicted is tempting when one thinks of the consequences of not knowing this information - however, using onling background checks can spell big trouble for these businesses. The Fair Credit Reporting Act (FCRA) governs the use of these reports and other agencies are concerned with discriminatory behavior associated with the use of the reports as well.

The FCRA governs more than credit reporting agencies, it governs any agency which is a "reporting agency" - anyone who supplies information gleaned from public records.

"Anytime you do a background check to make an employment decision, it falls under those laws," said Donna Ballman, a Florida-based attorney specializing in employment law.

The FCRA requires that candidates be told they are having a background check conducted and that they must approve the check. In addition, a path for dispute must be provided so they may challenge the information provided on the report if it is inaccurate.

Many states have "banned the box" outlawing employers from asking applicants about their criminal history.

Using online background checks, employers have no idea what type of information they are obtaining. Most sites just provide data, which they are selling to consumers. An FCRA compliant background check is very different.

To ensure you are FCRA compliant:

  • Always tell the applicant you plan to run a background check and obtain their written consent
  • Allow the applicant an opportunity to challenge inaccurate, adverse information
  • Don't use social media - there is too great a chance it will prejudice you against the candidate
  • Don't ask for social media passwords and don't "Friend" your applicants

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