General Business

Reference and Background Checks

Can we do reference checks for only certain roles?

Yes. As long as you’re not discriminating based on protected classes or characteristics, you can conduct reference checks for certain roles but not others. For example, you may decide that supervisory roles or positions with access to sensitive information warrant this additional step during the hiring process. As with any reference check, don’t forget to get the candidate’s permission first.

That said, some employers like to have consistent practices across the board to reduce the risk of a discrimination claim. Employees can file claims based simply on the appearance of discrimination, and employers may be held liable even if they didn’t intend to discriminate. In this case, doing (or not doing) reference checks for all roles would be the most risk-averse approach.

If candidates who were rejected after a reference check were all or mostly the same gender, for instance, you’d want to be sure that the reference checks were both a business necessity and that there was no other policy you could implement that would have less of an impact on the protected group.

What should we do if a candidate asks us not to contact their current employer?

It’s ultimately up to you, but we’d generally recommend that you honor the request. The candidate may have a good reason for asking you not to contact their current employer. They may fear retaliation if their manager gets wind of their interest in leaving, or they may have a toxic boss who wouldn’t give an accurate assessment of their ability to do the job.

If you wish to contact the current employer despite the candidate’s request, inform the candidate of your decision beforehand and explain what questions you will be asking their employer (dates of employment, job title, etc.).

Do we have to get permission to run a background check?

The short answer is yes: the Fair Credit Reporting Act (FCRA) requires you to get permission from your applicant or employee before conducting a background check. Aside from this legal requirement, telling applicants what to expect as part of the selection process is considered professional courtesy, especially if you will conduct background checks which dig into history that may not be directly related to the work they will be doing.

The FCRA has pretty specific notice requirements. For example, you also need to provide the applicant or employee a summary of their FCRA rights and the appropriate adverse action letters if you decide not to hire them (or terminate an existing employee) because of the background check.

Employers should also keep in mind antidiscrimination protections. Specifically, using criminal histories as a screening tool can have a disparate impact on race and national origin. Because of this, employers should only eliminate applicants based on their criminal history if doing so is job related and consistent with business necessity.

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