Dive Brief:
- There is nothing illegal about conducting pre-job offer background checks, but employers should tread lightly, according to the National Law Review.
- Mark Jeffries, an associate at Steptoe & Johnson who specializes in labor and employment law, writes that if an employer typically conducts background checks only after making a contingent employment offer, breaking from that pattern and conducting one before making an offer has pitfalls.
- Background checks reveal a person's race, religion, political affiliation, national origin or other protected characteristic, and that could pose a legal risk later, and from a practical standpoint, doing a check on every applicant is an unnecessary expense.
Dive Insight:
Jeffries writes that the issue of deviating from policy on background checks leaves employers vulnerable to litigation from doing selective background checks. Conducting a background check before turning someone down for a job could result in litigation because the job applicant can believe it was for reasons other than qualifications. Applicants passed over can use a policy that says the company deviated from its post-offer checks to plead discrimination.
Any employers which decide to take the pre-offer background check route for specific jobs should at the very least change the policy to reflect it. But, Jeffries warns employers must make it clear why some positions require pre-offer checks and others don't.
Of course, on the flip side, doing a background check after making a job offer and not knowing a person's protected characteristics makes it much more difficult for that applicant to file a discrimination lawsuit.