When you open a position in your company for new hires, you’re usually welcoming a large group of strangers who you know very little about, so you may want to have more information about a job candidate before making a decision. In order to protect the privacy of potential employees, there are laws in place that prohibit employers from getting a hold of specific types of information, such as medical records. The following discusses the types of information that employers can access and the laws related to making hiring decisions.
Permitted Background Checks
In theory, employers should only be inquiring about background data that is related to the job the employee is applying for. However, some employers like to do a more thorough investigation into the job applicant. The following are records that are commonly accessed and allowed by law to be used in the hiring process:
- Driving records
- Personal references
- Court records
- Social security number
- Property ownership records
- Drug tests
- Character references
- Past employers
- State licensing records
- Sex offender lists
In order for businesses to obtain the credit report of a potential hire, they need to have the potential employee’s written consent. If the credit report is a factor in the decision to not promote or hire someone, the applicant must be provided a copy of the credit report and told of his or her rights to challenge the report.
The use of criminal records in the hiring decision can vary from one state to another. Factors may include the type of job the applicant is applying for, such as law enforcement and child care positions. Some states require an applicant’s consent in order for an employer to access these records. It is recommended that you perform legal research or consult with a lawyer if you have any questions about your state’s laws.
In most cases, medical records are confidential and are unable to be accessed during a pre-employment background check. However, employers can inquire about the candidate’s ability to perform duties that are directly related to the job. Employers can also request a physical examination when it is relevant to the job.
Bankruptcy filings are public record and will also show up on the candidate’s credit report, if one was accessed. However, employers cannot discriminate against job candidates because of a past bankruptcy per the Federal Bankruptcy Act.
Although college transcripts and recommendations may be relevant to the job at hand, employers must obtain the employee’s consent in order to access them.
According to the Federal Privacy Act, military records are considered to be confidential and are released with consent. The military may, however, disclose rank, name, duty assignments, salary, duty status, and awards without the consent of the service member.
Workers’ Compensation Records
Information about workers’ compensation is public record and may be accessed by an employer. However, these records may only be a factor in the hiring process if the injuries could interfere with the ability to perform duties related to the potential job.
Lie Detector Tests
Most private employers are prohibited from using lie detector tests at any time during the hiring process or course of employment. However, there are exceptions that can be applied to businesses that supply guard or alarm services, armored car services, or those that distribute, dispense, or manufacture pharmaceuticals.
Hiring the right employee is a goal of most employers, and a background check is often part of the process. While some of the information is confidential or prohibited for use in the hiring decision, employers can also gain information by performing online checks of social networking sites. Job candidates who are not careful may inadvertently provide the employer with personal information that could be discussed during a job interview.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.