September 9, 2020

Pre-employment Background Checks

Pre-employment Background Checks: New FCRA Forms Must Be Used by September 21, 2018

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, criminal records and motor vehicle checks. 

Pre-employment background checks must be done whenever cities are hiring any emergency personnel, such as police, fire and emergency medical employees; however, that shouldn’t be the only time that they are done.  Other positions include those that have access to cash or city accounts and in these cases a criminal background check and sometimes a credit check may be in order.  Positions that require the driving of city vehicles or even those who drive personal vehicles for city business should require a motor vehicle check before he or she is hired and on an annual basis after hiring.  Doing these checks will not always prevent a hiring mistake, but it does show that the city is using due diligence in making hiring decisions.

Cities, as employers, must also be aware of the laws that surround background checks.  These laws include those found in the Fair Credit Reporting Act (FCRA), new legislation enacted by the federal government in May of 2018, known as the Economic Growth, Regulatory Relief, and Consumer Protection Act, Title VII discrimination claims, as well as the Kentucky Civil Rights Act and Kentucky law regarding background checks performed by public agencies.

Pursuant to the FCRA, employers must obtain permission in getting 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.  The new model “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018, by the Consumer Financial Protection Bureau (CFPB). Employers must begin using the new form no later than September 21, 2018, at certain times as required by the FCRA. Failure to use the correct form can expose the employer to litigation. Changes to the form incorporate the new legislation, known as the Economic Growth, Regulatory Relief, and Consumer Protection Act and include the minimum duration of initial fraud alerts, information on obtaining security freeze by consumers, as well as excluding from consumer reporting information regarding certain veteran’s medical debts and a new dispute process with respect to these specific medical debts. More information on notice requirements can be found on the Bureau of Consumer Protection website. (Note: As of the date of this article, the form, A Summary of Your Rights Under the Fair Credit Reporting Act (Summary), located on the Bureau of Consumer Protection website is not the most current form.  Employers should obtain the most current Summary on CFPB newsroom page or by contacting the KLC Municipal Law and Training Department.)

Under Kentucky law, KRS Chapter 335B states 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 exception is 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 person has been rehabilitated.   Also, under Kentucky law, police, law enforcement telecommunicators, fire and emergency medical personnel cannot be hired with felony convictions (KRS 15.382, KRS 15.540 and KRS 95.440).  In addition, emergency medical personnel with certain misdemeanor convictions would be disqualified from being hired in those positions, as well as police officers and law enforcement telecommunicators for convictions involving moral turpitude (KRS 311A.050, KRS 15.540 and KRS 61.300). 

Violations of discrimination under state and federal law can also be a possibility when using background checks in hiring decisions.  Follow the Equal Employment Opportunity Commission’s (EEOC) guidelines to be certain that you are not using convictions as a basis to refrain from hiring someone, especially regarding a person’s race or national origin.  Employer’s should consider how the conviction relates to the job being sought, as well as the time that has passed since the conviction, and the applicant’s conduct and references since this conviction.  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 job description.  When you must make a decision 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 questions on hiring or other personnel related matters, contact Andrea Shindlebower Main, Personnel Services Manager.