3.3.23 – Journal Record
Although advantages to using background checks in the hiring process abound, employers should ensure their hiring managers understand what type of information to request and how to use it. Benefits include mitigating potential exposure to legal claims, including allegations of negligent hiring and even liability for workplace violence.
Be aware, however, of laws that regulate how background check information is used.
Some industries in Oklahoma are heavily regulated when it comes to hiring individuals with criminal convictions. For example, certain industries have specific regulations regarding the hiring of candidates with criminal convictions for controlled substances. When applicable, a waiver must be obtained from the applicable state agency, or an employer could face fines.
Oklahoma law allows employers to obtain consumer reports, including criminal history, credit scores, driving records and other personal details, as part of the hiring process. Before obtaining the report, employers must provide written notice to the applicant with how it will be used and notice to the candidate that they may also request a free copy of the report.
The federal Fair Credit Reporting Act (FCRA), which does not prohibit employers from inquiring about or making an employment decision based on an individual’s credit score, has additional requirements employers must follow.
If an employer uses a third-party provider – referred to as a credit reporting agency (CRA) – to obtain background information on an applicant or existing employee, the employer is subject to the FCRA which imposes limitations on the contents of consumer reports and includes specific tenets regarding what information must be excluded.
Just as is required under Oklahoma law, the employer must first give notice and obtain consent. This notice disclosure must contain the FCRA notification only and must not address any other topics.
If an employer intends to take adverse action based on the consumer report, the investigated individual must be provided a copy of the consumer report and a written summary of consumer rights. Although no specific time limit is imposed under the FCRA, employers should wait a reasonable time period to allow the candidate to respond to findings. After taking action, the employer is bound to additional FCRA disclosure requirements.
If an employer is not using a third-party provider to conduct background checks, the FCRA does not apply. However, it is still a best practice to obtain written consent from the employee in order to prevent potential invasion of privacy claims.
Background checks and criminal history inquiries should be used with caution and on a position-by-position basis. Consult with your human resources department and employment legal counsel as questions arise.
Evan Way is an attorney with Crowe & Dunlevy, crowedunlevy.com, and a member of the Labor & Employment Practice Group.