Legal Blog

Background Checks: Fertile Employment Litigation Ground

What Is An Employer To Do?

By Neil A. Morris, Esq and Gabriel Celii, Esq microscopeIn the not too distant past, background checks of those applying for jobs were wide ranging with little or no restriction.  Someone wanted a job, the employer had a free hand to vet the applicant in every way, shape and form, then to decide without any scrutiny whether to hire the person or not.  Some might say, the “good old days” for employers; those days are gone forever. Discrimination, privacy and defamation laws have flourished, enacted by the states and federal government, enforced by armies of administrative agencies and “private attorneys general”, plaintiff trial lawyers, well-funded in search of seven figure damages and attorney’s fees.  Led by the federal Equal Employment Opportunity Commission (“EEOC”) and its fifty (50) state counterparts, scrutinizing how employers are using and/or abusing ever advancing technology, the internet and growing use and popularity of social media platforms and websites.  Background checkers beware! We now have much of our personal lives, personal information “on line” which presents huge privacy concerns.  One applying for a job does not relinquish all privacy rights.  From the employer’s perspective, it needs to know as much as it can about a person before giving him/her a job with “keys” to a company and its reputation.  Depending upon the job, the employer needs to look well beyond the initial interview and resume.  The basic education, work history and criminal record are now supplemented with financial/credit history, medical history, family life, community activities, hobbies, leisure choices, Facebook pages, blogs, etc. Given all of the legal pitfalls associated with the expanding “abuses” of background checks, an employer should first apply common sense.  Evaluate what type of information is really relevant to the job to justify a background check intrusion.  If knowing the information will not have bearing on the employment why seek it out? Public information, such as looking at an applicant’s public Facebook page, LinkedIn page or even doing a Google search is fair information game.  However, requiring applicants to provide access to their personal, private Facebook page or email, giving their user names and passwords is usually going to create legal pushback.  The courts do not like it, seeing it as employer overreaching dealing with an applicant in a vulnerable, powerless position.  And the state legislators in a majority of the states either have or have pending social medial privacy laws, with teeth, penalties, damages and attorney’s fees for breaches.  In 2015, more than 24 states already have these laws on the books. We strongly suggest that employers do not ask applicants or require existing employees to provide user names or passwords for their personal online accounts or pages nor ask that the employee “friend” or otherwise “invite” the employer to join their account, page or blog, to provide the “friend access” information.  Even without legislation, the courts are expanding the application of invasion of privacy, interference with business and defamation laws. Discrimination laws apply if the background check is obviously geared to exclude or adversely impact a certain class of people by their race, sex, disability, even wealth or lack thereof.  While financial status (i.e. poor credit score), is by itself, race neutral, if used it could be evidence of discrimination.  If the job requires giving financial advice and the applicant has a poor financial track record then looking at that issue would likely be proper and relevant.  But, if the job in issue was not financial in nature, it would not.  Of course, the same reasoning applies to every other class or category. Many, if not most states, now have laws like the Pennsylvania Criminal History Record Information Act, 18 Pa. C.S. §9125 which strictly limits the use of an applicant’s criminal record only to the extent the information relates directly to the applicant’s suitability for employment in the position for which she has applied.  In other words, an employer, without good, substantial bona fide cause, cannot refuse to hire an applicant because she has a criminal record. Under the Federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681, et seq. and state statutes, when a background check is run disclosures and notifications must be made to the applicant or prospective or existing employee.  Written authorization should be obtained from the person and notice must be given if the background information discovered was a factor in denying employment. It is a given that background information can be vital for any business seeking “the right fit” while efficiently screening applicants; however, federal and state lawmakers have emphasized that employers must take measures to ensure they are appropriately accessing and using this information. As the minefield of potential employer missteps grows and compliance becomes increasingly more complex, before the job application process is instituted employers should always consult a skilled labor and employment attorney and follow the advice offered.

THE PHILADELPHIA LABOR GROUP AT OFFIT KURMAN

ABOUT NEIL A. MORRIS

Philadelphia Labor and Employment Attorneynmorris@offitkurman.com | 267.338.1383 Neil Morris has passionately represented employers for the last 25 years. Mr. Morris specializes in the areas of labor and employment, municipal labor law, employment discrimination, defamation and business litigation. Mr. Morris has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.

ABOUT GABRIEL CELII

gcelii@offitkurman.com | 267.338.1361 Mr. Celii devotes his practice to representing businesses and municipal entities navigating labor and employment disputes ranging from wage and hour litigation and work place discrimination defense to labor negotiations and the resolution of grievances. During his representation of Philadelphia-area Townships and Counties, he has successfully defended claims brought against public officials and advised municipalities on the drafting of local ordinances, such as Police Pension DROP amendments. You can connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn.

WASHINGTON | BALTIMORE | FREDERICK | PHILADELPHIA | WILMINGTON | VIRGINIA | NEW YORK