If you've gotten a new job in recent years, you've probably been subjected to a criminal or credit background check. More than 90 percent of employers conduct criminal background checks on job hunters, and 60 percent do credit checks, according to a McClatchy Newpapers report.
But job hunters are starting to cry foul and are mounting legal challenges, arguing that they've been unfairly denied a job or fired after an employer's background check. And sometimes they're winning -- even against large companies.
This January, more than 300 workers were awarded $3.1 million after they filed complaints with the federal Equal Employment Opportunity Commission, alleging that Pepsi Beverages, a unit of PepsiCo, unfairly targeted them for background checks.
The EEOC said its investigation showed that Pepsi's screening policy resulted in those applicants with arrest records being denied permanent employment, even if they hadn't been convicted of any offense. It also denied employment to applicants who had been arrested or convicted of certain minor offenses.
But as the EEOC notes, using arrest and conviction records to deny employment can be illegal under the Civil Rights Act of 1964, when what's in them isn't relevant to the job, since it can limit the employment opportunities of applicants or workers based on their race or ethnicity. As part of the settlement, Pepsi revised its policy.
Former Domino's Pizza delivery driver Justin D'Heilly finds himself in a similar legal battle. The Minnesota resident was fired from his job in 2009 after a background check revealed some problems with his motor-vehicle history, though it remains unclear to him what was discovered.
"They never officially told me why," D'Heilly told McClatchy Newspapers. "I've never had any kind of disciplinary problems whatsoever, so to get that call out of the blue like that, you know, it just threw me off."
The news service reports that D'Heilly is now a plaintiff in a developing class-action lawsuit that alleges Domino's willfully violated the Fair Credit Reporting Act by running employee background checks without proper authorization, and by not sharing the reports with applicants and employees before taking adverse job actions against them, such as termination or denial of employment.
Domino's Pizza declined comment on D'Heilly's case, but a company spokesman told McClatchy, "We do not apologize for conducting criminal background checks."
The Society for Human Resource Management notes that workers have several rights when it comes to background checks:
- Federal laws prohibit employers from considering bankruptcy when making employment decisions
- Employers are required to get applicants and employees' permission to obtain credit reports
- Individuals must be provided with a copy of a credit report (as well as their rights under the Fair Credit Reporting Act), if information in the report leads to dismissal or denial of employment
- SHRM also notes that checks can occur even after an employment offer. Some employers will periodically conduct background checks on employees either at random or before considering an employee for a promotion, regardless of how long they've been employed.
The EEOC has begun increased scrutiny of the use of background checks by employers. The agency held a public meeting last July to determine if employers were using arrest and criminal records to unfairly deny employment to those with criminal backgrounds, employment website BLR.com reports.
States are also moving to protect job hunters from employers' prying eyes. Seven states -- California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington -- have laws limiting the use of credit reports in hiring. Other states, such as Colorado, are considering further restrictions on credit checks.
Sharon Dietrich, a legal-aid attorney in Philadelphia who represents mainly poor blacks in employment-discrimination cases, told McClatchy that such developments are heartening for job seekers.
According to Dietrich: "More and more people are coming to understand that large segments of our population are being rendered unemployable unnecessarily because of employers that simply say, 'You have something on your record. I don't want you working for me.' "
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