Background Checks on Prospective Employees Before Offer
Q: Can companies conduct background checks on prospective employees before making the offer of employment?
A: As a general rule, the information obtained and requested during the pre-employment process should be limited to that which is essential for determining if a person is qualified for the job. It should not be used to determine which candidate is “more qualified” than another.
It is not advised that you use background checks to decide between candidates; rather, background checks should be conducted AFTER the offer is made, and the offer be “contingent” on a satisfactory background check. And, you can make a “satisfactory background check,” part of the job qualifications.
Keep in mind that the PA Criminal History Information Act will not let you automatically disqualify an applicant for any type of criminal history. Rather, criminal history must be evaluated against the qualification of a “satisfactory background check,” which might be different for different jobs. In accordance with this Act, if an employer uses conviction in whole or in part as the basis for the employment decision, the candidate must be notified in writing. If you are following Fair Credit Reporting Act (FCRA) pre-adverse action and adverse action notice requirements, this fulfills PA notification requirements.
Neither NJ nor DE have criminal background check laws; however, employers should still be vigilant regarding the use of criminal background checks, especially if they were to have a disparate impact on a protected class or if there is no legitimate business interest for their use. Also, New Jersey has its own version of FRCA; the New Jersey Fair Credit Reporting Act (NJFCRA). Employers that conduct any kind of background check should become familiar with the notice requirements under NJFCRA as these requirements do not necessarily track Federal law. For more information on FCRA, NJFCRA, pre-adverse action and adverse action notice requirements, please contact MEA.
It is recommended that you use a reputable third-party company, like AAIMCheck, for background checks, as they can provide sample letters and guidance on the background checking process.
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MEA’s goal is to provide current, detailed and useful information to EXPERT HOTLINE callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business. If legal services are needed, MEA Members are entitled to a discounted fee arrangement with the Powell Trachtman law firm, which serves as MEA’s general counsel. For more information, contact Michael G. Trachtman at firstname.lastname@example.org.