ARE PRE EMPLOYEMENT BACKGROUND CHECKS LEGAL?

dsandoval · March 2004

Our company requires security clearances for some of our positions. We tell applicants during the interview process that security clearances are required for the job and ask if there would be a problem with them getting cleared. A lot of times applicants will say no, and we will extend an offer to them. When we begin the security process we find that there are problems which may require months if not years for their clearance. My question is, does anyone know if it is legal to run a background check PRIOR to extending an offer of employment to an applicant?

Bobster · March 2004

There is nothing to prevent such an approach. It is very simple to extend a conditional offer if you wish. Pre-offer background checks would be subject to the same limitations as post-offer checks and specifically to the FCRA. There is an article on the subject in the April issue of the NM Employment Law Letter, which you will receive shortly.

Nrdgrrl · March 2004

We make the offer contingent on passing the security check.

Couple of questions:

What kind of things would take months if not years for clearance? If it takes that long, I'm unsure what the point of even doing it would be. If they have a blemish, such as stealing, they could have robbed you blind in a matter of weeks.

You hire them even if they say no? Why do them then? If they say yes and don't pass, do you term them? Seems kind of unfair.

Cinderella · March 2004

I prefer to run the check before an offer is extended and it is perfectly legal to do so (as long as you have the candidate sign off for it and comply with FCRA). In fact, I do the drug test and reference check before extending an offer as well. That way you don't have to deal with firing someone immediately after hiring them (waste of time).

dsandoval · March 2004

Can you suggest a place where I can find a form asking the employee to sign off on a background check?

Cinderella · March 2004

I can email you one, just need your address

Shadowfax · March 2004

I'm going to try this one more time (that doesn't necessarily mean the last time: when we visited this topic a couple of months ago, someone said recent legislation had exempted these pre employment police record checks from the FCRA requirements. I STILL CAN'T FIND THIS INFORMATION! Can anyone verify this? This is driving me nuts! (I know, short trip!) Thanks (but only if you answer).

Cinderella · March 2004

I though criminal checks counted as "consumer reports"? Maybe that's only if they are paired with credit? Oh boy, now I'm confused too.

Shadowfax · March 2004

That's the point. They do! Or at least they did. But someone said awhile ago the police checks had been exempted, then when I asked for the cite - got no additional info. I'm assuming no change and still need to meet all obligatins of the FCRA even when doing the state police check, but if there is different info out there, I'd sure like to know it.

blw · March 2004

Shadowfax -
The only change that I am aware of affects internal investigations of employee misconduct. For brief info check this link.

[url]http://www.barran.com/pdf/alert137.pdf[/url]

This article specifically mentions that pre-employment background checks are still covered by FCRA.

dsandoval · March 2004

Hello Cinderella,
I would appreciate you sending me a form at [email]dsandoval@bhinc.com[/email]

Thank you so much

ARE PRE EMPLOYEMENT BACKGROUND CHECKS LEGAL?

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