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When Can Employers Rely On Employees’ Criminal Background Checks In Making Employment Decisions?

Posted Wednesday, February 7, 2018 by Pivotal Law Group

Many employers routinely run background checks, including for criminal history, as part of screening prospective employees. Washington and federal law require employers follow specific procedures when performing background checks, and give employees specific rights in this respect. Employers and employees benefit from understanding their rights and responsibilities regarding employment background checks.

The Washington Administrative Code limits employers’ inquiries into prospective employees’ arrest history, on the basis that arrests, standing alone, are not a statistically reliable indicator of criminal behavior and may disproportionately impact some racial and ethnic minorities. Accordingly, employers asking about prospective employees’ criminal history must also ask whether charges are still pending or have been dismissed, whether the arrest led to conviction of a crime involving behavior that would adversely affect job performance, and whether the arrest occurred within the last ten years. Similarly, employers’ inquiries regarding prospective employees’ criminal convictions must reasonably relate to job duties and be limited in time to the last ten years. These requirements do not apply to law enforcement and state agencies, school districts, or organizations responsible for the care of children or vulnerable adults.

Employees may find it wise to request copies of their criminal history, especially if they plan to apply for new jobs. That enables job-seekers to be informed, answer questions accurately and correct any mistakes in the employer’s background check. Regardless of their criminal history, employees should always answer employment application questions accurately, including with regards to criminal history. Generally, employers can lawfully decline to hire, or terminate, employees or prospective employees who lie on job applications.

Besides Washington law limiting employers’ criminal history inquires, the federal Fair Credit Reporting Act (“FCRA”) applies to employer background checks utilizing consumer reporting agencies. The FCRA requires employers requesting consumer reports obtain the applicant’s advance written consent, as well as notice that the report may be used as the basis for making employment decisions. If the employer takes an adverse action (e.g., declining to hire, refusing to promote, or terminating employment) based on the background check from the consumer reporting agency, the employer must notify the applicant or employee that its adverse action was based on the background check. This rule applies regardless of whether the background check was the ultimate or definitive reason for the adverse action, as long as the employer relied on the background check to at least some degree. Further, employees are entitled to obtain a copy of their background check performed by a credit reporting agency if their employer takes adverse action based on the report.

Employees or employers with questions regarding their rights and obligations about employment background checks may contact Pivotal Law Group attorney McKean J. Evans for a free consultation.

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