Background Checks – What Employers Need To Know

In working Backgroundwith business owners I have frequently faced a pretty regular set of questions about how hiring decisions are made:

“Can I consider information I found on Facebook?”

“Can I do a background check?”

“Can I do a credit check?”

“That online medications site said the applicant was once arrested for (insert any random offense here).  Now I don’t want to hire that person. What do I do?”

A recent article published by the State Bar of Wisconsin, “How to Conduct Legally Compliant Job Applicant and Employee Background Checks in Wisconsin” provides a good starting point for any employer considering checking into applicants or current employees.  The author, Scott Paler, is an attorney in Madison who gave some simple tips to employers.

“The types of background checks that employers perform vary. However, the most common assortment includes: (1) some form of criminal history check; (2) verification of prior employment; and (3) verification of education. Some employers also seek driving record information, credit history information, civil lawsuit information, and substantive reference information. In general, the type of background checks ordered by employers should take into account the nature of the company and the job. For example, a driving record check should only be ordered if a certain applicant will likely drive as part of his job. ”

Attorney Paler goes further to explain the process for getting credit information from third parties.  That type of check requires notice and consent from the applicant/employee.  If the employer finds information that may lead to non-hiring or adverse employment action, there is a three-step process that must be followed.   The first step is notice to the applicant and employee with a copy of the report and notice of the employee’s rights.  The second step is waiting a reasonable amount of time for to allow the employee to identify misinformation (a good rule of thumb is five days).  The third step is a very detailed and specific “adverse action” letter to the applicant or employee.

When considering criminal background history employers are not permitted to just deny an applicant a job or fire an employee because of what is found.  ” Wisconsin is one of the country’s most restrictive states as to employers’ use of criminal history information. In Wisconsin, employers may only consider criminal convictions that are “substantially related” to the job in question. Further, an employer may not consider arrest records or criminal charges unless the case remains pending and the underlying charge is “substantially related” to the job.”

If an employer fails to honor the process or restrictions regarding background checks it can face civil lawsuits by applicants or employees and administrative government claims for discrimination or violation of civil rights.  These legal proceedings could award an applicant or employee reinstatement, back wages, and possibly punitive damages or fines.  The bottom line is that it is important for business owners to do this right because the hiring process only happens once.  There is no “do-over” or “let me make that right for you” afterward.  If you violate the law, you’ve violated the law. Period.

If you’d like to read the full article about background checks, it can be found here.  If you have questions about what information you have a right to ask for, consider, or find without the applicant knowing, call me.  I’ll be happy to talk you through the different types of background checks and whether and how information can be used in the hiring decision.

Johanna R Kirk

Kirk Law Office, L.L.C.  Superior, WI 715-718-2424