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Pre-Employment Tests and Background Checks

Frequently, employers have questions concerning the legal process behind employment tests and background checks. When making decisions about employees, many employers want to thoroughly screen the applicants to be sure they are getting only the most qualified and committed future workers. These tests can include personality questionnaires, drug tests, cognitive assessments, English proficiency, screening their Social Media pages and more. The legal rule governing testing is that the tests must be non-discriminatory and the tests must be administered properly.

In all cases, employers must avoid anything that could be misconstrued as discriminatory. The formula for success is equality. It is illegal to run a background check on any one employee. This can be easily translated as discriminatory behavior based on any number of factors, including, but not limited to; race, national origin, color, sex, religion, disability, genetic information, or age (40 or older). It must also be noted that you cannot ask about any preexisting medical conditions or genetic information, before the official job offer has been made.

When ordering a criminal background check, you are required by the Fair Credit Reporting Act (FCRA) to make a few disclosures to the applicant. Firstly, you must tell them that the information may be used to make a decision about their employment in writing, stand-alone format. This means that it must be on a separate piece of paper to the application. Secondly, you must get their written permission to order a background check. If you want to be able to have continuous access to their background check during employment, you must state so plainly in the form as well. Lastly, when you submit all of this information, you must reiterate that you have completed the aforementioned steps to the company performing the check.

What happens if you do find something that alarms you? When you take any adverse action based on a background check or screening process, the FCRA has a few additional requirements that must be met. Firstly, be sure you give the applicant a copy of the report that you received and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act." After you have the conversation with the employee, you must explain orally, electronically or in writing, that they were rejected because of the information provided in the report. Also in this statement, provide the name of the company that performed the report and let them know that they have the right to dispute the accuracy of the report.

If you want to learn more about the FCRA, follow the link provided. If you have questions about employee screening or other employment-related matters, please contact Danz & Kronengold, P.L. at www.danzlaw.net.

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