Are Employee Background Checks a Privacy Violation?

employee-background-checksI wrote an article a little over a week ago on how far back should background checks go and have been surprised at the number of LinkedIn comments asserting that the past is irrelevant.  The comments have gone back and forth like a tennis match. The reality is that the past does matter.

I can’t escape the past.  Every day I am questioned by potential clients.  How long have you been in business?  How long were you a police officer?  How long have you partnered with organization X.

Or I am asked to provide a curriculum vitae that details my 15+ years of speaking at conferences throughout the U.S. and Europe on violence prevention.  And if it is a keynote presentation, I will be asked for references.

I am cool with that.  I realize that my life is a work in progress, building blocks that over time form who I am.  It started with my parents work in law enforcement and victim services.  Then my practical experience as a violent crime detective which opened the door to more than 15 years of violence prevention work and the launching of Safe Hiring Solutions in 2004.

The past does matter.  Good or bad.

Oddly, these comments about the past not mattering were coming from LinkedIn which is one of the fastest growing social media platforms for business networking.  And LinkedIn is built on the past.  Look at the profile pages of members.  It is all about experience and education.

So I think the more than 100 million LinkedIn members would have to agree that the past is important for business networking or they would not be members.

However, I noticed several comments that employee background checks are a privacy violation.  I was going to comment but I thought this was such an important point that I would write an article.

Yes, a background check is certainly a privacy issue.  Listen close.  Privacy issue not privacy violation.  Two distinctly different things.

A background check is by its nature a privacy issue.  You are digging into a person’s background to determine if there is anything unsuitable.

I understand that a criminal records check is information that is publicly available but it is still a privacy issue to conduct the background check.  The courts have even recently ruled that there is an expectation of privacy on the internet when it relates to social media background checks.  A post on Facebook is for my friends not the whole world to see.

So yes background screening is a privacy issue.

The Fair Credit Reporting Act, the federal law that governs employment background checks, has very specific requirements to ensure there are no privacy violations.  If an employer is using a background screening company to conduct their background checks then they must:

  • Provide a disclosure statement to the applicant about the background check that may be conducted;
  • Obtain an authorization from the applicant; AND
  • The disclosure and authorization must be separate from the application so that the applicant completely understands what they are waiving (their privacy).

A legally conducted background check is NOT a privacy violation.  How could it be if you authorize it?

You have a right to say no.  But the employer does also.

So you cannot avoid an employee background check by claiming it is a privacy violation.  The past does have validity.

This does not mean that having a criminal record should immediately be a disqualifier.  That would be foolish.

But to say the past has no meaning is….well…stupid.  There I said it.

One commenter stated that several “studies” have shown that a person who has committed a crime in the past is no more likely to commit a future crime than someone without a criminal record.  Study?  Cite?

I have seen scores of studies on recidivism that indicate more than half of ex-offenders are re-arrested within 3 years.  FBI behaviorists have been studying violent offenders for decades and found that the best indicator for future violence is a past history of violence.

Dr. Jacquelyn Campbell, Johns Hopkins University, developed the Danger Assessment which is an instrument to help women assess their risk of interpersonal homicide.  The tool relies on past history to help women assess their risk.

So yes, the past is important.  To ignore the past would be negligent as in negligent hiring and negligent retention.

So to answer the big question, employee background checks are a privacy issue but they are not a privacy violation.