Background Checks

6360280 · January 2009

Question, in OH can you legally go to a court website and put in an applicant's information to obtain a background check? What are the stipulations on this? The owner of the company I work for stated that he wanted the HR dept to check the background of employees through a public website for a local court system. You would need to put in personal information i.e. DOB or SSN to obtain accurate information. Is this a form of discrimination, do we need them to sign a release to obtain this information? I have refused to do this until I know what type of legal ramifications comes with this. We were "told" that our lawyer said it was ok, but I don't believe it. And I don't know what to do. Please Help.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

HR36 · January 2009

According to guidelines issued by the Ohio Civil Rights Commission, it is discriminatory to ask job applicants about arrests that did not result in convictions, unless a bona fide occupational qualification is certified in advance by the Commission (OH Rev. Stat. Sec. 4112.02). It is permissible to ask prospective employees about convictions. The only exception is a conviction record that has been sealed, unless the employer shows that the record has a direct and substantial relationship to the job in question (OH Rev. Stat. Sec. 2953.33). Keep in mind that the federal Equal Employment Opportunity Commission (EEOC) takes the position that records of a criminal conviction may only be considered in making employment decisions if the conviction is job related.

I do know that you cannot obtain information re: driving convictions from OH's DMV without the individual's consent. OH has also pased a number of laws protecting against the use of SSNs (although I am not aware of law specifically prohibiting the use you describe). I think you are right to be cautious here.

TXHRGuy · January 2009

I know of a company that engages in this practice and I have discussed it at considerable length. Here are some thoughts:

Does a government agency that provides such reports to the public for no cost constitute a "consumer reporting agency" for the purposes of the FCRA? If not, then you can proceed but note the caveat below. If the attorney who blessed this is not an employment law attorney familliar with the FCRA requirements in conducting a background check, then dismiss the advice and check with an employment law attorney familliar with FCRA requirements and background check law in general both federal and state specific. If the government agency does constitute a "consumer reporting agency," then do the FCRA paperwork and proceed but note the caveat below. To my knowledge, this question has not been answered by any court and, with increased public access to such records on the web, I think it's only a matter of time.
Does the report provide arrest information? If so, you will always have the potential for a person to say that you made an employment decision based on their arrest record, which is the gateway to an EEOC complaint. This complaint is unlikely in actual practice but you only need to go through that wringer one time to wish you had done things differently.

6360280 · February 2009

I would like to thank anyone who responded, we actually got a new HR director who has expereince. She is great, she did says simce its public info we can look but we still need to get written consent from the individual to use their personal information. She is in the process of convincing the owner to not go that route.

Background Checks

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