CONDUCTING CRIMINAL BACKGROUND CHECKS (part 1)

By Jonathan K. Driggs, Attorney at Law

May employers in the state of Utah conduct criminal background checks as part of a pre-employment screening process?  The answer is yes.  But whatever you do, don’t stop reading here.  The real question is: can employers rescind an offer of employment because the criminal background check reveals a conviction?  This question presents an opportunity to use an attorney’s favorite answer: it depends!

First of all, there is currently no federal or Utah law that directly regulates or prevents employers from conducting criminal background checks.  But again, please don’t stop reading here.  Various laws do or may apply in what we might call an “indirect” or partial manner depending upon the circumstances.

For instance, the Fair Credit Reporting Act (FCRA), a federal law, requires that whenever a “consumer report” is run on an individual—and a third party service provider is used to run the report—that the entity requesting the report receive written authorization from the consumer prior to report being obtained.  The Bureau of Consumer Protection includes criminal background checks in its definition of “consumer reports” and employees or prospective employees in its definition of “consumers.”  Thus, the FCRA applies whenever an employer uses a third party service provider to run a criminal background check on a prospective employee.

The FCRA also includes specific notification procedures to be followed in case the background check reveals something problematic, causing the employer to want to…, well, as Paul Simon famously sang years ago, “slip out the back, Jack.”  I have observed over the years that these notification requirements are often overlooked by employers (and since I am on a musical roll here, such an omission would probably cause the employer to sing, “nobody knows the trouble I’ve seen,” since employers can be fined for non-compliance under the FCRA).

For an explanation of FCRA authorization and notification processes, click on the following link:  http://business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know  FYI, the FCRA doesn’t apply if the employer runs its own report instead of using a third party service provider—e.g., the employer does its own search using public records, such as those found on a county government website.  Obviously, doing it yourself has its own complexities and limitations.

Ok, but let’s get back to the original point, despite all of the above, the FCRA doesn’t prevent an employer from doing a criminal background check—or dictate what an employer can do with the results—it just mandates that certain processes are followed when the background check is done.  And by the way, any third party service provider worth its salt (I don’t know what salt is worth exactly, but we all seem to know what these dead metaphors mean anyway), will provide its clients with the necessary FCRA forms.

So, as long as employers comply with the FCRA, can they do whatever they do whatever they want with criminal background checks?  I hate to leave you hanging, but in next month’s installment I will either: 1) give away an all expenses paid family vacation to Disney World, or 2) discuss how recent guidance issued from the Equal Employment Opportunity Commission is putting increased pressure on employers to use criminal background checks with greater discretion and judgment.  Hmmm, giving away a free trip to Disney World versus sharing vital information about the current state of doing criminal background checks?  It’s going to be a tough call!  Stay tuned!

 

This article should not be construed as legal advice.  Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.

Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the Mountainland Applied Technology College’s “Custom Fit Program” at significantly discounted rates for “for-profit” businesses (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers).  The seminar will be held on March 26, 2013 at their campus at Thanksgiving Point in Lehi.  For details and registration contact: Roger Rice (801) 753-4153 or rrice@mlatc.edu or click on this link for details: http://mlatc.edu/files/cf/current/ELMS.html

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