Privacy Invasion in Background Screening?!

Privacy invasion in background checks – myth or concern?

When it comes to interactions between an employer and their employees, confidentiality must always be a guiding principle.

Personal, romantic relationships, sexual orientation, religious beliefs, and family matters are private aspects of an individual’s life that, in most cases, have nothing to do with work and are therefore none of an employer’s or hiring manager’s business.

In the case of employee background checks, however, the distinction between “privacy invasion” and “necessary precaution” may be unclear. In this post, we will examine the delicate balance between privacy rights in the workplace and employers’ obligations to conduct thorough background checks when hiring new employees.

Understanding of the legal framework

First, it is essential to understand that workplace privacy rights continue to be strongly protected by law. For example, it is still illegal for an employer to terminate an employee based on their religious or political beliefs. Even when conducting employee background checks, employers must adhere to the Fair Credit Reporting Act’s privacy or GDPR (If performing a background check in Europe) requirements. The FCRA as well as the GDPR mandate, among other requirements, that employers must disclose their intention to conduct a background check on an applicant, must obtain written consent to do so, and must follow specific steps to notify a candidate if the results of a background check result in an adverse hiring decision.

If an employer strictly adheres to the FCRA & GDPR, the privacy issue surrounding background checks becomes largely irrelevant. While conducting a background check requires digging into a person’s past, which some may view as an invasion of privacy, candidates who consent to this process waive their right to privacy in these areas. This consent stipulates that the employer must check or verify specific pieces of information before making an informed hiring decision.

Distinction Between Privacy Invasion and Necessary Precaution

The majority of background checks provide pertinent information that an employer has a right to know about an applicant for employment. If the applicant has a criminal record that disqualifies them from the position, such as a sex offender applying for a teaching position, the employer needs to know. Similarly, if the background check reveals misrepresentations on the candidate’s resume that alter their perception of his or her qualifications, that information is entirely relevant to them. An employment offer is made by an employer in good faith, with the belief that the candidate possesses the required skills, qualifications, and experience. In order to secure a job offer, it is hardly an invasion of privacy for an employer to verify the information provided by a candidate.

That is not to say that the rights of employers to conduct background checks are absolute or even set in stone. For instance, the concept of social media background checks has been criticized because so much of what is posted on the typical Facebook or Twitter account is private and irrelevant to employers. Similarly, a number of recent legislative initiatives have restricted employers’ ability to conduct background checks. The ban the box movement, which has influenced the laws of many cities and states and will soon apply to federal contractors, is one example.

Additional

As a provider of third-party background checks, intelimasters collaborates with clients to develop background check protocols that adhere to local, state, and federal laws and privacy regulations around the world. Check out our monthly blog for information on the FCRA, GDPR, social media background checks, and other topics concerning the delicate balance between employee privacy and employer diligence.