Criminal Background Checks in VT
Hello,
Is it ILLEGAL for a VT employer who is
not in the business of elder care, child care, disabled care, and
without residential facilities to require a criminal background
check? I read that you may obtain the information from the State
Criminal Information Center if you are in the aforementioned categories
of business.
Thanks for any clarification you can offer.
Comments
Hi Erin:
My sources say that in Vermont, the state Criminal Information Center of the Department of Public Safety will provide employers with a Vermont criminal conviction record provided the employer has complied with the following requirements (VT Stat. Tit. 20 Sec. 2056c):
When considering criminal record information, employers should keep in mind that the federal Equal Employment Opportunity Commission (EEOC) takes the position that it is a violation of Title VII of the Civil Rights Act to base an employment decision solely on an applicant's arrest record. In addition, according to the EEOC, employers may rely on a record of a criminal conviction only if it is related to the job.
Employees working for licensed private detectives or security guards may be required to submit to a criminal background check (VT Stat. Tit. 26 Sec. 3176).
It is the policy of the state of Vermont to use criminal record checks to deter abuse and exploitation of school children and to do so in a manner that protects, as much as practicable, the privacy of those subject to the checks.
Public school districts and approved Vermont independent schools and their contractors must request criminal record information from:
[quote user="ddomian"]I'm not sure specifically about VT, but most states require that any withdrawal of an employment offer or termination of employment for a criminal background, must have a direct correlation to the position in question. For example, if the associate is found to have a felony charge of vehicular manslaughter, but the person doesn't drive for their employment, then this information does not warrant a withdrawal of offer or termination of employment. [/quote]
I'm not sure about most states' specific rules on this but I do know that rules vary widely across the states I'm used to working with. They run from the very liberal use of information as a test of "moral turpitude" which allows for the use of virtually any theft or drug related information including non-felonies in an employment decision to much more strict rules, although none as strict and specifc as ddomian mentions. It's noteworthy that arrest records are highly problematic because they don't actually provide evidence of wrong doing in our legal system, which is why the EEOC is not fond of the use of arrest records in employment decisions. I advise people against even looking at or requesting arrest information in their backgrond checks and to rely on convictions only to the extent that criminal background information is used in their screening process.
Also, the Fair Credit Reporting Act has been ruled to apply to criminal background checks that come from most vendors, essentially equating criminal background information with consumer credit information. I do not know if a state agency would be considered a consumer reporting agency under the FCRA with respect to providing criminal background information to employers.
Are you a HR practitioner?
Pre-employment background checks are legal and are commonly done.
If you purchase the background check from a third party, instead of doing the research yourself, then there are some limiting laws.
a) Fair credit reporting act (FCRA)
b) Americans with Disabilities Act
c) Driver's Privacy Protection Act (DPPA)
d) and specific state laws, like Consumer Protection laws in Calif.
Nationally, the FCRA says the disclosure and consent requirements of employers who use "consumer reports." Such reports might consist only of a credit check. More extensive reports might include criminal histories, driving records, and interviews with neighbors, friends and associates.
To be covered by the FCRA, the Federal Trade Commission (FTC) says that a report must be prepared by an outside company -- a "consumer reporting agency" or business that "for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in ... assembling ... information on consumers for the purpose of furnishing consumer reports to third parties." (FCRA §603f)
Under the FCRA, the employer must obtain the applicant's written authorization before the background check is conducted. The authorization must be on a document separate from all other documents such as an employment application. In California, at the time an employer obtains permission for a pre-employment background search, the applicant or employee should also be told that he or she may request a copy of the report. By contrast to California, the national FCRA says the subject is entitled to a copy of the [url=http://backgroundsearch.com/Employee-Screen.html]pre-employment background search report[/url] if a adverse notice is given.
Under federal law, if the employer uses information from the consumer report or background check for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion, then the employer must give the job applicant a copy of the adverse information.
Records that are open to the public are searchable from the Vermont Courts online at https://secure.vermont.gov/vtcdas/user.
They include detailed information for 12 of the 14 Vermont superior
courts civil and small claims cases. To access this service cost $12.50
and includes five docket lookups.Vermont Crime Information is at http://www.dps.state.vt.us/cjs/recordcheck/index.html