Pre-Employment Background Checks

When hiring a new employee, the city may need to request additional information to make an informed decision. Some of that information may include requesting credit reports, criminal records, and motor vehicle checks.

Cities are required to perform background checks when hiring emergency personnel, such as police, fire, and emergency medical employees; however, that should not be the only time. As citizens put their trust in city employees, cities should consider conducting background checks on all applicants once they have been offered a position of employment. In addition to criminal and/or credit background checks, cities should also include pre-employment and annual driver’s licenses background checks on applicants or employees who are required to drive city vehicles or those who drive personal vehicles for city business. Doing these checks will not always prevent hiring mistakes, but it does show that the city is using due diligence in making its hiring decisions.

Under the Fair Credit Reporting Act, employers must obtain permission before conducting a credit or criminal background check, and the permission should be granted on a standalone document. In addition, if any of the information is used in the decision-making process, the city is required to notify the applicant to give them an opportunity to dispute any incorrect information. More information on notice requirements can be found on the Bureau of Consumer Protection website.

In addition to the federal law, Kentucky law provides that even if an applicant has been convicted of a crime, they cannot be automatically disqualified for public employment, which includes employment with a city. The only exceptions are when the conviction “directly relates to the position of employment sought ..." And even then, it is not an automatic disqualification, as an employer can still hire if they believe the applicant has been rehabilitated. In addition, the statute contains notice requirements and potential hearing requirements if denied employment based on a report. (KRS 335B.030).

If you determine that there is something in the background report that may prevent you from hiring the applicant, you must:

• Give the applicant a preliminary notice that includes a copy of the report relied upon; and
• Give the applicant a copy of A Summary of Your Rights Under the Fair Credit Reporting Act.

If you take adverse action based on a background report, give the applicant a final notice of that fact that tells the applicant about their rights to see the information being reported about them and to correct inaccurate information. The notice must include:

• The name, address, and phone number of the consumer reporting company that supplied the report.
• A statement that the company that supplied the report did not make the decision to take the unfavorable action and cannot give specific reasons for it.
• The grounds and reasons for the denial or disqualification.
• The earliest date the person may reapply, and that evidence of rehabilitation may be considered upon reapplication.
• The applicant's right to dispute the accuracy or completeness of any information the consumer reporting company furnished and to get an additional free report from the company if the person requests it within 60 days.
• Under KRS 335B.030, the individual has the right to a hearing conducted in accordance with KRS Chapter 13B if a written request for a hearing is made within ten days after service of notice.

U.S. Equal Employment Opportunity Commission (EEOC) violations can also be a possibility when using background checks in hiring decisions. Follow EEOC guidelines to be certain that you are not using convictions as a basis to refrain from hiring someone, especially related to a person’s race, sex, national origin, or any protected class. For more information on avoiding EEOC violations when using criminal background checks, see the EEOC website.

Keep in mind that any information used to make a hiring decision must be related to the job and the current job description. If you decide not to hire based on information from any type of background check, make sure that you work with your city attorney to be certain you are making the right decision for all involved.

For more information on this or any personnel-related matters, contact KLC Personnel Services Manager Andrea Shindlebower Main.