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Part Two: Stay on the Right Side of the Law When Conducting Job Candidate Background Checks

Stressed Job SearchingSee more from the June 2020 issue of Labor & Employment Law News.

In the past, background checks on prospective employees were done as a matter of course by employers. The only real risk employers faced was missing a red flag in a candidate’s background, resulting in a poor hiring decision. However, in the wake of new legislation, employers must take great care to avoid liability while filtering out information about their job candidates during the hiring process. In Part One of this series, we discussed the ins and outs of conducting both Criminal and Fair Credit Reporting Background Checks. This article discusses social media background checks, medical examinations/drug testing and background check best practices.

Social Media Background Checks

It’s no surprise that most employers would like to review a candidate’s social media accounts before making a hiring decision. After all, an individual may share and disclose information relevant to a hiring decision on social media that may never come out during an application and interview process. Despite how valuable that information may be to an employer, the Internet Privacy Protection Act (the “IPPA”) prohibits employers from taking certain actions on social media.

Specifically, under the IPPA, an employer must not:

  1. Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account; or
  2. Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.

The IPPA does not prohibit or restrict an employer from viewing, accessing, or utilizing information about an employee or applicant that can be obtained without any required access information or that is available in the public domain. However, internet searches do not circumvent the traditional rules regarding pre-employment inquiries. An employer can search for information but must not discriminate based on what it observes.

Medical Examinations and Drug Testing

Title I of the Americans with Disabilities Act (the “ADA”) prohibits an employer from discriminating against a qualified individual on the basis of disability in regard to employment, which includes the hiring process.

Under the ADA, medical examinations that screen out or tend to screen out an individual with a disability are unlawful unless, as used, they are shown to be job-related for the position in question and consistent with business necessity. To be lawful, the medical examination must relate to the essential functions of a specific job, not a general class of jobs.

A medical examination of an individual cannot be required prior to extending an offer of employment. If medical testing leads to an adverse decision, an employer must determine whether an individual excluded by the criteria could perform the essential functions of the job with reasonable accommodation. If the candidate is ultimately not hired, he or she must be informed of the reason for refusal to hire based on the medical examination. The candidate cannot be charged for the examination.

Drug testing of candidates may be conducted prior to making an offer. While tests for illegal drug use are not considered medical examinations, tests to determine alcohol use/abuse are medical examinations under the ADA. Testing results must be kept confidential. Finally, keep in mind that if you’re planning to drug test current employees, and your workforce is unionized, your drug testing policy must be negotiated pursuant to a collective bargaining agreement.

Conclusion and Background Check Best Practices

Background checks are effective tools to screen out undesirable candidates during a hiring process. But it’s critical that an employer put in place background check policies that are compliant with relevant laws and regulations.

To remain on the right side of the law when it comes to background checks, employers should:

  • Consider developing an internet background search policy
  • Maintain thorough records
  • Ignore information about protected characteristics
  • Clearly document legitimate business reasons for hiring decisions
  • Be aware of EEOC guidance or agency action
  • Train its human resources team
  • Consult with experienced legal counsel to ensure its background check practices are compliant

If you have any questions about how to conduct background checks effectively and lawfully, please contact a member of Foster Swift’s employment law practice group or the author of this article, Mike Blum, at (248) 785-4722 or at mblum@fosterswift.com.

Categories: Employee Handbook, Employment

Photo of Michael R. Blum

Mike Blum is an award-winning Michigan labor and employment lawyer in Detroit who has litigated some of the state’s most important cases. Part of Mike’s effectiveness as a litigator, in ADR and as a counselor to employers, comes from his 11 years with the National Labor Relations Board.

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