Employers Requesting Background Checks

By: Scott Brown

QUESTION FROM A SUBSCRIBER:

Q: If a person receives a job offer, and is told that there is going to be a drug test and background check, what are the items relevant in the background check? At what point can a prospective employer reject a person?

Dear M.B.,
When it comes to background checks, the general rule is the background check needs to be relevant to the position you're being hired for. If the background check being conducted is checking for information that is not very relevant to how well/competent the applicant is likely to be in the job, it could be challenged - especially if the negative results of such a check would tend to disproportionately affect a protected class of job candidates (e.g. women, minorities, etc.).

Generally, even if you have been convicted of a crime, that fact alone should not disqualify you from a position unless the crime you committed would tend to make you a less qualified applicant for the job in question.

For example, if someone was convicted for child molestation, they would probably not be a good candidate for a child care position, and an employer would in most cases be fine with using that as a reason not to hire the person. On the other hand, if someone was convicted of failing to taxes, it would be more difficult for an employer to use that as a reason not to hire them for that same type of position.

Another area where employers can run into trouble is with credit checks. If an employer requests a credit check of an employee who will not have any fiduciary responsibilities, it could be difficult for them to show that it was truly warranted. As an example, if ABC Company institues a policy to require credit checks on all their job candidates before hiring and a year later it turns out that a disproprotionate number of the people they rejected were minorities, one of the minority candidates would probably be successful in suing the company for damages if they could show that credit worthiness is not a good predictor of job performance for the type of position they applied for.

To address the question about your specific situation: the company you applied for would probably be on solid ground to reject you on the basis of a positive drug test provided that the drug test is administered to all job applicants (and not just job applicants that would likely be in a protected class).

For information about reference checks on your prior employersArticle Submission, check out this article:
http://www.jobsearchinfo.com/refs.htm

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