The Supreme Court recently heard a case in which 28 scientists and NASA contractors from Caltech sued the government agency after it requested new background checks be conducted on long-term employees. The contractors reportedly found some of the open-ended questions asked by NASA to be an invasion of their privacy.
According to the Supreme Court Blog (yes there is such a thing), the case, NASA v. Nelson, raised the issue of whether the “government violate[s] a federal contract employee’s constitutional right to privacy by asking her whether she has received counseling or treatment for recent illegal drug use in the past year, or by asking her references if they have any reason to believe she is unsuited to work in a federal facility.” The court has not yet ruled on the case.
Though the case focused on government employees, the issue of seemingly invasive background checks is becoming a widespread legal issue. A number of lawsuits have been filed by employees in both private and public jobs, accusing employers of discrimination based on information found in background checks, or with conducting overly invasive screenings. Yet because background checks are both a legal and standard part of the hiring process — according to the Society for Human Resource Management, employers can legally conduct background checks before they even make an employment offer — it can be hard to know when your rights are being violated.
Here are a few things to remember when it comes to background checks:
Most employers need to get your permission: According to the Federal Trade Commission’s Bureau of Consumer Protection, employers must get permission from a candidate before conducting a background check if a third-party agency is doing the screening. Since most employers don’t have in-house background-screening capabilities, you will usually know if a background check is being done on you, because you will have to sign a permission form. Should you not be given a background-check permission form at the time of your interview, ask the employer if they will be conducting one.
They can occur even after an employment offer: Some employers will periodically conduct background checks on employees even if they have been there long-term, either at random – as in the case of the NASA screenings – or before considering an employee for a promotion. In most states – California is one exception – if you gave permission for a background check before you were hired, employers generally do not need to ask permission for follow up screenings.
Most employers take into account the severity of the crime: That DUI that has been haunting you since your college days may be a black mark on an otherwise clean record, but chances are it won’t prevent you from getting a job. If that DUI is one of many, on the other hand, it may raise an issue with potential employers. According a study by the Society for Human Resource Management, 81 percent of employers consider the severity of the crime when conducting a criminal check, 75 percent consider the number of convictions and 73 percent consider the relevance of the crime to the job. Sixty-three percent, however, reported giving candidates the chance to explain their convictions before disqualifying them from the position.
Your credit can be checked during a background screening, but chances are it won’t be: The society’s survey found that although it is perfectly legal for employers to check the credit histories of job candidates, only 13 percent of organizations reported conducting credit checks on all job candidates and only 9 percent of employers said that having good credit was a major influence on a hiring decision. Eighty-seven percent of respondents said that even if a red flag shows up on a credit check, the candidate would be given the chance to explain the situation, and would not be immediately considered ineligible.
It’s best to be prepared: Most employers do some form of background screening these days. It can be as simple as checking your references, or in-depth enough to cover everything from criminal records to credit history. The best way to figure out if there is anything that might raise a red flag is to be prepared. According to PrivacyRights.org, ordering a copy of your credit report, checking court and driving records, searching your name online and asking for your personnel file from your old employer are all good ways to figure out what might come up in your background check. If you find anything that you think may be of concern, raise the issue with the employer before the screen is conducted. This will give you a chance to explain yourself, while also proving your honesty and integrity.
You can also check out SureCheck, a CareerBuilder service that lets you see what’s on your background check before an employer sees it.
For more on background checks, see: