Background Checks and Your Privacy

by Kit Fremin

If you are faced with the possibility of having to undergo a background check as a prerequisite for obtaining a new job you may be wondering how your right to privacy conflicts with your employer’s right to know more about you; especially with regard to any possible criminal history and past job performance. As a person whose company has performed tens of thousands of background checks I would like to present some facts of which you may not be aware.

Fact #1: Virtually all criminal records are public. If you commit a crime or even if you don’t and you are charged with a crime, the record of that is available to the public. Courts have records of all crimes or suspected crimes that made it to court. In addition to that, some police departments make their arrest logs available.

“What about the presumption of innocence?” you may ask. That is still in effect, but nevertheless the charges brought against you are public record. In fact, anyone can go down to the local courthouse and request to see your record, and they don’t even have to be a citizen. About half of the country’s criminal records are available online in some form or another, often on fee or subscription sites.

Juvenile records are an exception to this rule and are generally sealed unless the person was tried as an adult for a major crime.

If you have a minor crime in your past, try to get it expunged from the record. Technically an employer can’t deny you employment if you had a minor criminal record in your past where you were found not guilty. Like the old saying, “You can’t un-ring a bell.” Once they see a criminal record it tends to stick in their minds. Getting a record expunged is relatively simple and usually doesn’t require an attorney. There are companies listed on the web that specialize in expungement and many counties (Cook County, IL, for example), encourage record expungement.

Fact # 2: There is no magic government database that lists all of your previous employment and education. A surprising amount of otherwise smart people ask me, “Can you get a list of someone’s previous employment and verify it?” The simple answer is No. there is no database with your employment listed. Remember, background checkers are verifiers. You have to give us the info, we then verify it.

Fact # 3: Employers can get credit info on you. Employers can order a Credit Report which is a specially designed credit report specifically for employment purposes. It is exactly the same as a regular credit report with two important exceptions; It doesn’t show your credit account numbers and it doesn’t tell your age or date of birth. The good news for you is that you have to give specific permission to have a credit report run on you and you are notified whenever one of these reports is ordered on you, in case you did not give permission.

Most credit bureaus require a separate consent form signed by you to enable the employer to order a credit report. This is to prevent having the consent text buried in the fine print of and employee background check consent form and having the report ordered without your express permission.

Fact #4: Employers can ask your date of birth for the purpose of obtaining your criminal history, because criminal records are searched by name and date of birth. What they may not do is discriminate based on your age. There are still people out there that think that if a potential employer asks for their date of birth that they can automatically sue for age discrimination. No, you must be discriminated against first. Most recent legislation has set the bar much higher for age discrimination lawsuits. You have to show a pattern of age discrimination by the employer, which is vastly more difficult to prove.

Throughout the 26+ years that I have been doing background checks I have had many, many arguments with people and attorneys (a little joke here) who say that an employer may not ask for age or date of birth. They are wrong, Period. Saying, “Show me the law.” usually works against their argument, but for the really hard cases I always ask them if, at their business, the human resource people are blindfolded when they conduct an interview. “Why would they be?” they ask. To which I reply, “God forbid that they could tell the applicant’s sex, race, religion, national origin, etc., all things that an employer may not discriminate against.

Another word about discrimination: While the above is true, some legal discrimination does occur. (How many old, fat lifeguards have you seen at the beach, for example?) The acronym is BFOQ which stands for Bona Fide Occupational Qualification which basically means that if a church wants to hire a pastor, they can require that he be of that faith or if a clothing designer wants to hire a model to model women’s clothes, he/she can hire a woman. Likewise, there can be physical ability requirements too. Remember that an employer can legally not hire you because you smell bad or your mommy dresses you funny. My point is; don’t give someone an excuse not to hire you. Be at your best and be well prepared.

Fact # 5: Employers have a right to see your SS#. Technically they are allowed to see it at the time of hiring, not necessarily when you are applying. It’s a fine distinction, but an important one.

Fact # 6: You have the right to see the background check report especially if you were denied the job based on the results of the background check. If my company, BCI, did your report and an error was made, we want to know about the errors and so should your employer. FYI; federal law requires background check companies like ours to reinvestigate any claim (in writing) by you, the applicant, within five days of the report being issued. My company, BCI has extended that guarantee to 30 days.

Fact # 7: Employers can ask previous employers anything they want. When

verifying your previous employment, the new employer can ask anything they want

about your work habits, character, initiative, conduct or anything else thy want to know.

The previous employer doesn’t have to answer any of those questions of course, and in

fact, most don’t.

Small business employers who don’t have specific HR departments ask these types of

questions far more than often larger employers. When asking the questions, they are

not doing anything illegal, in fact, they are probably very smart.

Conversely, when answering the questions, we recommend that previous employers

stick to documentable facts and not express their opinion. Here is an example that really

happened: We asked a previous employer what they could tell us about applicant’s

competency and character. The previous employer responded that the applicant was

slothful and was always late for work and didn’t care about his job. A better answer

would have been, “We have a company rule that if you are late three times that you are

written up. He was written up three times in one year. That can be documented and

does not contain the respondent’s opinion. You can’t sue someone for telling the truth.

Well, you can, but you won’t win.

Kit Fremin is the owner and founder of Background Check International. Since 1994 BCI has served

clients as varied as: the LA Times, Department of Defense, Mars, Inc., the UN, the NTSB and Calvary

Chapels nationwide. His website is: www.bcint.com and he can be e-mailed at kit@bcint.com.

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