Before Performing Preemployment Background Checks Read This!

Weekly HR News - Hiring Practices

Before Performing Preemployment Background Checks Read This!

When hiring a new employee the city may need to request additional information in order to make an informed decision.  Some of that information may include requesting credit reports and criminal records checks.  And in some cases, as with police officers, background checks are a requirement before hiring.

Under the Fair Credit Reporting Act, employers must obtain permission to get a credit or criminal background check.  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 the opportunity to dispute any incorrect information.  More information on notice requirements can be found on the Bureau of Consumer Protection website at http://www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know.

In addition, KRS 335B.020, which was amended by SB 120 in the 2017 legislative session, states that even if an applicant has been convicted of a crime, he or she cannot be automatically disqualified for public employment, which includes employment with a city.  The only exception is when the crime “directly relates to the position of employment sought ...” And even if it directly relates to the position, an employer can still hire if they believe the person has been rehabilitated.  To consider whether or not an individual has been rehabilitated, the employer should consider the nature and seriousness of the crime for which the individual was convicted and how much time has passed since the conviction; how the crime may relate to the position of public employment; and the relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position.

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 in regards to a person’s race or national origin.  For more information on avoiding EEOC violations when using criminal background checks, see the EEOC website at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Keep in mind that any information used to make a hiring decision must be related to the job and the job description.  When you must make a hiring decision 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 questions on hiring or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.