Here at Miletti Law®, we are committed to continued publishing blogs and making videos with the aim of keeping you, our unusually motivated® readers, #InTheKnow about diverse legal issues that affect you or your businesses. As the authoritative force in Employment and Labor Law, we endeavor to continue enlightening you about how the labor law, particularly here in New York City, affects you or your business.

This blog introduces you to a brand new series through which we hope to enlighten you on what the labor law says about Pre-employment Screening and the Use and Access of Consumer Reports. We have, in our past blogs, provided guidance regarding how employers should do to remain compliant with statutes like the Fair Workweek Law and the Salary Threshold for Employees. In this series, we’ll provide guidance on the steps employers should take to remain compliant with the legal requirements of pre-employment screening.

Let’s now dive in.

As a preliminary matter, pre-employment screening is the process in which an employer performs the background check of a suitable candidate, in order to validate the information and professional/personal information they have provided. From a legal perspective, pre-employment screening is a matter of doing your due diligence upfront to protect yourself and your business. On the same note, consumer reports checklist will likely comprise of a database, or series of databases, containing a variety of categories of personally identifiable information that may include, but not limited to, credit reports and a multitude of criminal and other public records such as records of civil court judgments and procedures and bankruptcy filings

Guidance on Pre-employment Screening

In order to perform effective pre-employment screening, employers should ensure the following:

  • All pre-employment screening is performed within the provisions and limits of the state and federal privacy and antidiscrimination laws;
  • Human Resource personnel are trained on how to conduct lawful pre-employment interviews and background checks;
  • The employer’s knowledge of candidates is maximized upfront.

Guidance on the Access and Use of Consumer Reports

The law is very strict on the access and use of a person’s personal information, even when legally obtained. Therefore, it is the responsibility of an employer to make sure that reasonable and lawful standards for accessing and using consumer reports are adopted in their businesses or organizations. To achieve this goal, an employer should:

  • Make sure that all practices and policies related to the access and use of consumer reports within the business or organization remain compliant with the Fair Credit Reporting Act (“FCRA”);
  • Create and enforce policies for controlling the access, acquisition, and utilization of an candidate’s investigative and consumer reports;
  • Ensure that human resource personnel or other employees entitled with the task of acquiring or reviewing consumer reports are adequately informed about the limits within which they the information should be used or disclosed and to who;
  • Ascertain that the third party involved with conducting consumer reporting or investigatory tasks is licensed under the law and remains compliant with the FCRA;
  • Ask the private investigator consumer reporting agency or conducting personal background checks to provide you with a written confirmation regarding the extent and limits of their obligations;
  • Verify that the Social Security number and name provided by the candidate corresponds to those in a consumer report;
  • Refrain from  exacting blanket rules when it comes to the possibility of employing criminally-convicted candidates;
  • Ensure that any personal information collected during a background check is properly disposed after use;
  • Be aware of what local, state, or federal laws says about the access and use of a person’s credit information;
  • Let a candidate understand the job-related reasons behind the denial of employment.

Stay tuned for the next part of this series and always be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know at the Contact Us page!