Are Background Checks an Invasion of Privacy?

By Michael Klazema on 10/7/2020

When it comes to the interactions between an employer and their employees, privacy must always be a core tenet of the relationship. Personal romantic relationships, sexual orientation, religious beliefs, family matters: these things (and many others) are private details of a person’s life that, in most cases, have nothing to do with work and therefore are not the business of an employer, boss, or hiring manager. In the case of employee background checks, though, there can be some question of where the line between “privacy invasion” and “necessary precaution” may lie. In this post, we will take a closer look at the delicate balance between privacy rights in the workplace and the obligations that employers have to do their due diligence when hiring new employees.

First, it is important to know that workplace privacy rights are still very much protected by law. For instance, it is still illegal for an employer to fire an employee for holding certain beliefs—including religious and political beliefs. Even in the case of employee background checks, employers must observe privacy-minded requirements laid down by the Fair Credit Reporting Act (FCRA). Among other requirements, the FCRA mandates that employers must disclose their intention to conduct a background check of an applicant, must obtain written consent to do so, and must follow specific steps for notifying a candidate if their background check results lead to an adverse hiring decision.

If an employer follows the FCRA to the letter, then the privacy question concerning background checks is essentially moot. While conducting a background check involves digging into a person’s past—something that some people might find to be an invasion of privacy—candidate who consent to this process effectively waive their right to privacy in such areas. There is an understanding in this consent that the employer must check or verify specific pieces of information in order to make an informed hiring decision.

Secondly, most background checks are providing relevant information that the employer does have a right to know about the person they are hiring to perform a job. If that person has a criminal record that makes it illegal for them to take the job in question—such as a sex offender applying for a teaching position—the employer needs that information. Similarly, if the background check unearths resume falsehoods that change their perception of the candidate and their skills, that information is absolutely their business. An employment offer is an offer made in good faith by the employer, under the impression than the candidate possesses the skills, qualifications, and experience required for the job. It is hardly an invasion of privacy for an employer to verify the information the candidate provided in order to secure the job offer.

That’s not to say that employers’ rights in terms of running background checks are absolute, or even that they are set in stone. The idea of social media background checks, for instance, has been challenged because so much of what is posted on the average Facebook or Twitter account is private and has no relevance to an employer. Similarly, there have been several recent legislative movements that have restricted employers in their ability to run background checks. One example is the ban the box movement, which has impacted the laws in many cities and states—and which will even soon apply to federal contractors.

As a provider of third-party background checks, works with clients to establish background check protocols that are above board and that respect local, state, and local laws and abide by privacy requirements. Check out our Learning Center for resources on the FCRA, social media background checks, and other topics that concern the balance between employee privacy and employer due diligence.

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