Many employers in Connecticut do routine criminal, credit and general consumer checks on prospective new employees.
If that is your routine as an employer – be careful. The rules are changing.
Let’s take them one at a time.
- Criminal background checks. Changes have occurred here on two levels – federal and state. At the federal level, the Equal Employment Opportunity Commission (EEOC) has been working to limit the use of criminal checks because in their view such practices tend to adversely impact African-American and Hispanic candidates. In Connecticut, the legislature in 2016 passed legislation that bars employers from asking job applicants to check a box on job applications if they have a criminal history. Employers must now wait to ask that question until after an applicant has been interviewed. Also, under a law called the Fair Credit Reporting Act (FCRA), an employer cannot obtain a report for employment purposes unless a clear and conspicuous disclosure has been made to the individual and the individual has authorized the procurement of the report. Further, except in the case of an investigation into misconduct by an employee, an employer cannot use a report in connection with an employment decision unless it first provides to the individual a copy of the report and a summary of the individual’s rights under the FCRA and the opportunity to provide a written explanation. Finally, an employer cannot reject an applicant for employment until after the time for providing a written response has passed without a response or until after considering the written response. The employer must then send final action notice in writing to applicant.
- Credit checks. For a number of years, it was common for employers to run routine credit checks on prospective hires to better understand each candidate’s character. Given the difficulties many families are having making ends meet – a number of legislatures, including Connecticut’s, have deemed this practice unfair to job applicants and now restrict employers from making decisions based on this information. Except for certain circumstances, Connecticut employers are prevented from requiring an applicant or employee to consent to a request for a “credit report” as a condition of employment and from using credit scores in making hiring or employment decisions. This prohibition does not apply when: (a) the employer is a financial institution (i.e., bank, savings and loan association, credit union, insurance company, investment advisor or broker-dealer); or (b) when the report is required by law; or (c) when the employer “reasonably” believes the employee engaged in any activity that constitutes a violation of the law related to his/her employment; or (d) when the report is “substantially” related to the applicant or employee’s current or potential job or when the employer has a bona fide purpose for requesting or using the information in the credit report that is substantially job-related and is disclosed in writing to the employee or applicant. Where employers are allowed to use credit checks, the same rules under the FCRA, as detailed above, also apply.
- Social media checks. Employers must use great care when seeking information about job applicants from their social media pages. As an example – the EEOC strictly prohibits employers from discriminating in the hiring process based on a candidate’s religious or political views. In fact, there is much such information on these sites that can be claimed to have been used in hiring decisions – leading to discrimination lawsuits. However, employers are permitted to check all public information available on social networking sites to obtain information regarding applicants (or employees) and may use such publically available information when making employment decisions (in same lawful manner as background information is otherwise obtained and used). Keep in mind, though, that employers in Connecticut may not require applicants or employees to provide social networking passwords as condition of employment (several other states and local governments have similar bans).
Hiring new employees is often a complicated process – if it’s done correctly. If you’re an employer in the midst of hiring new employees, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut for guidance. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.
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