Should The Internet Be Used For Background Checks?

Saturday, December 1, 2007 - 00:00

Editor: Please describe the practice areas covered by the Labor & Employment Group which you chair.

Benedetti: We offer counsel for the entire gamut of employment issues. We provide counseling for employers and high level executives in the negotiation of employment agreements or severance packages. We also advise on policy manuals for employees, day-to-day advice on issues dealing with adverse employment actions, family medical leave, ADA, FLSA, wage and hour issues. Just as important to our clients as our counseling function is our ability to litigate the claims arising from these and other employment issues. We often find ourselves in court defending employers who are being sued under Title VII for a variety of discrimination or retaliation claims as well as wage and hour, family medical leave, age issues and so on. Also within our practice area we have a group of lawyers headed by Matt Whitehorn who cover benefit problems, benefit issues as well as tax items related to these issues. Finally, our labor practice counsels management in cases where unions are attempting to introduce union shops to the employment force.

Editor: In a recent seminar sponsored by your firm you addressed the subject of background checks -- a particularly troublesome area for employers. What basic information should an employer know before making an offer to hire?

Benedetti: As a first step, all employers should have a policy in place to handle background checks. Is the employer going to conduct the check internally or is he going to hire a third party to do it? Secondly, what is the employer trying to accomplish with this background check? What is the nature of the employer's business? What kind of information does the employer really need to make an informed hiring decision? Once an employer has an understanding of these threshold issues, the key to using this tool effectively is consistency and confidentiality. If the employer is conducting criminal background checks, he must do them on all applicants, not just some applicants. Whatever one is garnering from these checks, whether it is a credit check, reference check, or criminal background check, it is mandatory that one maintain confidentiality. Making sure those records are maintained in a place where only a few people have access so there is no potential for their dissemination is critical. Finally, the employer should have forms that the applicant signs, putting him on notice that the employer is following up with such checks so there is no mystery. The applicant can then make an informed decision as to whether to pursue applying for the position. He cannot complain about an employer's following a standard procedure.

In Pennsylvania, there is a statute that limits an employer's ability to make checks regarding criminal records. If an employer is making a decision not to hire based upon the criminal record of an applicant, the employer must be able to tie the criminal background to some facet of the job the person will be handling or some public policy reason. For example, if the position calls for handling funds and the applicant has been convicted of some type of financial fraud that would be a sufficient enough relationship between the crime and the job to justify not hiring that person. If, in fact, you decide not to hire someone because of his criminal record, Pennsylvania state laws require that you notify the applicant of that fact in writing.

Although having a criminal background is not a protected class like race, religion and sexual orientation, if you are not applying these same background checks on a consistent basis an employer can be exposed to a disparate treatment claims under Title VII.

Editor: Why should a former employer of an employee, when asked for a reference, be restrained in releasing certain information?

Benedetti: That is the sort of the defensive mechanism that we counsel our clients to follow. Unfortunately, in our society, if you provide any more than what I call, "name, rank and serial number," you run into a potential defamation or disparagement situation. The applicant can claim that your remarks ruined his opportunity to get the job. The safest thing for employers to offer is information about what the former employee did for the company and the dates of employment unless the employee has furnished a release authorizing the former employer to speak freely and to provide documentation.

Editor: What level of care must an employer take in determining whether a candidate might be harmful to others, either physically or psychologically?

Benedetti: Again, you have to take the care a reasonable person would take in that particular situation. Much depends on the facts of the case. If an employer interviews a person who has a criminal background of abuse or violence, you are certainly not going to be hiring that person into a day care or a senior care situation where people are vulnerable and unable to protect themselves. By the same measure, if you hire someone in a factory or an office setting, where there are other protections in place, that issue may not be as significant. Again, the key here is to have a policy that outlines how an employer reviews applications and evaluates applicants. If you consistently apply those policies, even if someone slips through and there is a claim, you have an available defense of liability.

Editor: Would you care to comment further about the anti-discrimination laws?

Benedetti: What they come down to is treating people appropriately. If a company has a culture of being fair, listening to what employees have to say, and treating everyone in a respectful and dignified manner, you will be the kind of employer, who if sued under Title VII, will have ample defenses to those claims.

Editor: What ways may an employer obtain information about a potential employee without being in violation of federal or state law?

Benedetti: There is the criminal background check, credit checks, old fashioned reference checks, immigration checks showing the applicant is a U.S. citizen (or not) and now we have the Internet. You can "google" someone for information or find information about someone on any one of the social websites. There are no laws concerning Internet searches or whether an employer can use information gleaned from the Internet. Our common sense and the teachings of Title VII tell us that if you are going to use these social databases, again you should disclose that to the employee. Secondly, there must be a nexus between the information that you hope to garner from those social websites and the job that the applicant is potentially being hired to do. You do not want to engage in some fishing expedition. Finally, you do not want to access people's password-protected or private spaces on these social websites, Facebook and MySpace, which have a public and private aspect. Hacking into private spaces would not only be illegal from the standpoint of privacy laws but there are also computer laws at the federal level that govern misuse of information.

Another avenue of checks is afforded by the Fair Credit Reporting Act. This law applies only to companies that are engaged in the business of running those types of searches. So, as an employer, only if you hire an entity subject to that Act, is that entity required to follow certain guidelines which include disclosure and confidentiality.

Editor: Why do you consider searches on the Internet the least reliable?

Benedetti: My advice at this point in time is: why do you want to do a MySpace or Facebook search? These sites can provide a different and unique look into somebody's character which can falsify or skew information. You do not really know who posted the information. I would suggest only using such sites if you are dealing with high level positions which could directly affect clients or vulnerable individuals. Generally, people at that level are not posted on those social networking sites.

Editor: Your Group recently held a most interesting seminar on "hot" employment issues. For those unable to attend would you mention what subjects were covered and by whom in your group?

Benedetti: There were seven separate topics that we addressed. The first addressed discrimination claims based on sexual orientation and gender identity. Those issues were discussed by Holly Rogers, one of the associates in our Labor and Employment Group. She touched on what is an emerging area of the law where claims are being made by individuals who identify themselves with particular sexual orientations or certain gender identities. She discussed the implications under current federal law as well as county or municipal law. As a result of a survey of Pennsylvania municipalities, Holly found there are ordinances enacted by local authorities that actually declare these identity and preference issues as protected classes specifically and provide for certain rights.

Another speaker, Matt Whitehorn, discussed IRS Regulation 409-A, an exceedingly complex provision of the Code, which has gone through various iterations and is about to go into effect at the end of 2007. Matt outlined the highlights and triggering points that a practitioner needs to be aware of; it is truly a trap for the unwary in that a seemingly harmless act in relation to a deferred payment can spell punitive results for an employee.

Eric Myer, one of the bar leaders on the subjects of document retention and litigation hold issues, walked our audience through the reasons for having a document retention policy and how to implement an appropriate litigation hold as well as some of the inherent pitfalls in these areas.

Katharine Hartman spoke about timing issues when dealing with administrative filings - such as the 180-day rule versus the 300-day rule - and right to sue letters - when you need them or do you need them?

My partner, Margie Obod, who has recently dealt with clients on issues involving the Uniform Service Employment and Reemployment Act, addressed the requirements for an employer in the event an employee needs to leave for military service. She provided cautionary examples of steps to avoid and the proper ways to defend against an administrative claim to the Department of Labor.

Editor: How can our readers access the handouts at the seminar?

Benedetti: We have a book and would be happy to make that available to your readers. Please call Breanna Tannous (215) 575-7042, or email her at btannous@dilworthlaw.com and she'll be happy to send the handout materials to you.

Please email the interviewee at gbenedetti@dilworthlaw.com with questions about this interview.