FYI: here are two recent legal updates looking at the tricky issues surrounding employee background checks – what you can look for, what’s out of bounds.
The first piece of commentary, by law firm Fisher & Phillips, looks at the U.S. Supreme Court’s January 19, 2011, decision in NASA v. Nelson, with privacy implications that might well extend beyond government contract employees.
“In a rare unanimous decision, the Supreme Court held on January 19, 2011 that NASA’s background inquiries of its contract employees regarding drug treatment or counseling and other negative “general behavior or conduct” of its contract employees were tailored to the government’s interests in managing its workforce and therefore did not violate the employees’ right to informational privacy. The Court ducked the issue of whether such information is actually protected by any Constitutional right to privacy, leaving that question open for another day. Nelson v. NASA.
The Court limited its decision by avoiding the question of whether the information was actually protected by a Constitutional right to privacy. Instead, the Court recognized that 30-year-old precedent created a broad Constitutional interest in avoiding disclosure of personal matters, but declined to limit, expand or even address the contours of that right. Instead, it assumed for this purpose of this ruling that the information elicited by the background investigation was protected by that Constitutional interest.
This case was closely watched because it could have been the Court’s first ruling on the scope of the right to informational privacy since 1976. Instead, the Court provided no clarity on that issue, focusing its ruling narrowly on whether the background investigation was tailored to a government interest. The Court does not seem inclined to set out any bright-line rules regarding the type of information that is protected from government collection, and we are unlikely to receive any guidance any time soon.
The Court’s decision confirms that public employers may act similarly to private employers by requesting a broad range of background information from employees or applicants, as long as the inquiry is related to the employer’s interest in employing a competent, reliable workforce. Public employers do not have to use the least-intrusive means to garner background information to serve their interest in managing their employees and broad, open-ended questions can serve that interest…” Read on»
The second piece of legal commentary comes from law firm Sheppard Mullin and touches upon the broader concerns of employment background checks in the Age of Google. The over-arching message: as an employer, err on the side of caution.
“You might be thinking, ‘what could possibly be wrong with finding public information that the job candidate has freely shared on the Internet?’ Having shared that information, the company should be able to ask him about it. After all, the job applicant is not making a secret of it.’
Protected Classes Under Federal and State Law
Now, step back and think for a moment. There are subjects that are considered off limits for employers to ask job applicants about. Under federal law, Title VII of the Civil Rights Act prohibits discrimination when making employment related decisions. A company cannot make hiring, discipline and termination decisions based on any of the following protected factors: race, color, national origin, religion and gender. The Age Discrimination in Employment Act (ADEA) adds to the list with a prohibition on discrimination against individuals who are 40 years or older. And, finally, the Americans With Disabilities Act of 1990 prohibits discrimination against “qualified disabled” individuals. Employment decisions are defined broadly and include promotion, demotion, compensation, and transfers…” Read on»