Background Checks: Follow the Law When Checking Out Employee Candidates

You need to hire smart and you'd like to hire efficiently, but not so fast. When making a hiring decision, you might need a bit more information than an applicant provides. After all, some folks give false or incomplete information in employment applications. And workers probably don't want you to know certain facts about their past that might disqualify them from getting a job. Generally, it's good policy to do a little checking before you make a job offer.

However, you do not have an unfettered right to dig into applicants' personal affairs. Workers have a right to privacy in certain personal matters, a right they can enforce by suing you if you pry too deeply. And, you may be legally required to follow certain procedures - such as getting the applicant's consent in writing - before you can get certain records. Follow these tips to stay out of trouble:

  • Make sure your inquiries are related to the job. If you decide to do a background check, stick to information that is relevant to the position for which you are hiring. For example, if you are hiring a unit manager who may have access to large amounts of cash, you might reasonably check for past criminal convictions. If you are hiring an administrative assistant, however, a criminal background check is probably unnecessary.
  • Ask for consent. You are on safest legal ground if you ask the applicant, in writing, to consent to your background check. Explain clearly what you plan to check and how you will gather information. This gives applicants a chance to take themselves out of the running if there are things they don't want you to know. It also prevents applicants from later claiming that you unfairly invaded their privacy. If an applicant refuses to consent to a reasonable request for information, you may legally decide not to hire the worker on that basis.
  • Be reasonable. Employers can get into legal trouble if they engage in overkill. You will not need to perform an extensive background check on every applicant. Even if you decide to check, you probably won't need to get into extensive detail for every position. If you find yourself questioning neighbors, ordering credit checks, and performing exhaustive searches of public records every time you hire a clerk or counterperson, you need to scale it back.

Many other rules may apply to checking a candidate's background so consult a knowledgeable franchise attorney to make sure your hiring practices are in agreement with the law.

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