Communications and Media

Privacy in the Hiring Process

In a sense, every job application or job interview is a form of background screening. In addition to talking to prospective employees, reviewing their applications, reading their resumes, and calling references, more and more employers are using some additional form of background screening. You should know about your privacy rights and how they apply in the hiring process.

Pre-employment Background Checks

One form of background screening is the pre-employment background check. A pre-employment background check requires a consent form, and these background checks are used to scrutinize potential employees and to avoid risky employees. When an employer performs a pre-employment background check it is seeking your credit history, your driving record, your medical records, any military records, and any court records about you. A specific consent is required in order for an employer to access your medical records.

How to Protect Yourself

Unfortunately, there is a lot of inaccurate information out there, and you may very well find inaccurate information in your credit files. You have a right to a free credit report once each year under the Fair Credit Reporting Act and a right to correct any mistakes. (15 U.S.C. ยง 1681, et seq.) The law is far from perfect. As an example, it does not apply to employers that perform their own background checks. Some states have their own laws that offer more protection than the Fair Credit Reporting Act.

What the Fair Credit Reporting Act Prohibits:

  • Records of civil lawsuits after 7 years
  • Records of civil judgments after 7 years
  • Records of delinquent credit accounts after 7 years
  • Records of paid tax liens after 7 years
  • Any other negative information after 7 years

Criminal convictions may be reported after 7 years. However, the area is far from settled. Arrest records are public information, but employers may not seek arrest records or discriminate against job applicants because they filed for bankruptcy protection.

In addition, an employer that is not going to hire you because of information discovered during your background check is required to provide you with pre-adverse action notice. As a practical matter, how will you know if your background check resulted in a negative hiring decision? Have you ever simply received a letter thanking you for your interest with no explanation other than another candidate was selected? Usually that's the end of your relationship with that potential employer. As you can see, this area of the law needs further development, especially in this day and age of identity theft.

Drug Screening

Some employers also perform a pre-employment drug test or screening. These screenings usually test for marijuana, cocaine, opiates and amphetamines. Generally, a written consent form is required and an employer is required to have a pre-existing policy regarding drug testing. If your test comes back positive, the employer may notify you and allow you to designate a laboratory at which you may have the sample retested at your expense. Employers claim that employees that use drugs raise the cost of doing business and cite to statistics that employees that use drugs are more likely to deal drugs, and to steal from the company or other employees. In addition, employees that use drugs are involved in more work-related accidents and are significantly less productive than employees that do not use drugs.

Medical Exams

Different rules control when you are applying for a job as opposed to when you have a job offer. When you are applying for a job, the employer is not allowed to seek medical information about you. However, the employer may seek information directly related to performing the job. An example is employers that have a specific lifting requirement, for instance, lifting 20 pounds. Once you have a job offer, the employer may require a medical exam, but only if the employer requires all applicants to take such an exam prior to receiving a final offer of employment. The employer is required to safeguard all of your medical information and may not keep the information with your regular personnel file. Disclosure is limited to necessary supervisors and first aid personnel in order to ensure your health and safety.

Lie Detector Tests

As a general rule, employers may not require job applicants to take a lie detector test, which is also called a polygraph test. Exceptions exist for sensitive governmental, school or counter-intelligence jobs.

How a Lawyer Can Help

For most of us, having a job is a necessity. The very reason that there are federal and state laws protecting job applicants is evidence of this reality. As you read above, the law is far from perfect and laws vary from state to state. Talking with a lawyer will give you peace of mind and you will be able to discuss your situation and options. If the worst has happened to you, you may be able to file a lawsuit, and a lawyer can help you consider your options.

Questions for Your Attorney

  • How can I find out why I was rejected for this job?
  • Can I file an action against this employer?
  • What remedies may I seek if I file a lawsuit?
  • How can I be certain that this information will not affect my other job applications?
  • How can I correct errors in my credit report, and who pays?
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