The Loopholes of Privacy Laws and Employment Background
The loopholes of privacy laws can be used to make employee
background screening more meaningful than they could
otherwise have been, and although the purpose of these
laws is to protect the individual, the employer also
requires some protection against deceptive applicants.
However, applied correctly these laws can also protect
applicants from wrongful accusations and false records.
It all started in the 1990s when there were a number
of cases involving employees assaulting customers and
other employees, and the courts ruled that employers
were legally responsible for negligent hiring. Since
then, background checks have become increasingly more
sophisticated. Employment background screening has now
become a major business, and privacy laws have been
introduced or amended to take that into account.
It is certainly true that every individual has the
right to privacy just as it is that every employer should
know as much as possible about the person they are considering
hiring, especially if that employment involves a sensitive
job requiring complete honesty and integrity of character.
There are no legal problems with the employer carrying
out the normal previous employment checks, and seeking
information on the residential status of the applicant.
After all, a gap in an employment or residential record
could indicate an anomaly such as period in prison that
had not been volunteered. The employer has a right to
be able to employ the best person for the job, and if
that job involves handling a lot of money unsupervised,
then they obviously do not want to give the position
to somebody with previous convictions for larceny!
However, as the law stands in many states, if the conviction
was over 7 years ago, the conviction cannot be contained
in the background screening report. It is still possible
to investigate the case and conviction, but not to use
it as part of the decision to be made. That is part
of the Fair Credit Reporting Act (FCRA). Other aspects
of the Act are that you likewise cannot use:
There is another Act known as the American with Disabilities
Act that states that not only can an employer not use
a disability as reason for refusing employment, but
that the employer cannot ask the applicant if he or
she has any disability. This protects the candidate
from being refused a job due to a disability that might
have no bearing on his or her ability to carry out the
job being offered.
The FCRA has one major loophole, and that is that it
only applies if the employer subcontracts the pre-employment
screening to a professional agency. If the employing
company carries out the background check itself, using
its own employees, then they may be exempt from the
Act. The problem here is that both the law and the level
of employment background checks required are so complex,
and require a such high level of expertise, that few
companies have little choice but to pass the job on
to professional background screening services.
Some employers, however, use another loophole in the
law. The FCRA does not apply to the actual pre-employment
screening process itself, only to its reporting. Employers
can therefore investigate, even with contracted professional
investigators, and collate the information. They can
then include that information in the report, but provide
a reason for rejecting the applicant that is not connected
with the information procured.
So long as the adverse information is not cited as
being the reason for the rejection, the applicant is
not legally required to see the report. That is, apart
from in California that has introduced its own law.
There, the report is available to the applicant on request
irrespective of the reason given for his or her job
application denial, and the FCRA applies to all employers,
whether or not they subcontract the work to professional
However, even California cannot force employers to
employ people that they do not want to employ. All they
have to do is get the information they require, and
then leave it out of the report. They then refuse the
employment, and even if the applicant is given access
to the report there is nothing there that could be construed
as a reason. The reason given will be that most commonly
used in these cases: there was a better applicant.
The loopholes of privacy laws and background checks
can be used by both parties in a job application, but
ultimately the employers will employ the people they
deem best for the job on offer. However, if the employment
background screening is properly carried out professionally,
there should be no need for any subterfuge.
Employers have the legal right to refuse applicants
for any job if they can provide evidence obtained within
the law, place that in a report, inform the applicant
of why they have been refused and provide them with
a copy of the report. This protects the employer and
also protects the employee from false accusations and