What is employers duty to protecting employee data?

While several states mandate data security measures by statute (e.g., Massachusetts, California, Oregon, Maryland, etc.), in late November, the Pennsylvania Supreme Court issued a landmark decision, recognizing for the first time an employer’s affirmative, common law duty to “exercise reasonable care to safeguard their employees’ sensitive personal information by the employer on an internet accessible system.


Can I ask my potential/current employee what non-prescriptions and/or prescriptions they are taking?

According to the Equal Employment Opportunity Commission (EEOC), in most cases an employer cannot ask all of its employees about their use of prescription medications because 1) taking those meds do not affect job performance; and 2) testing for those meds is not a “business necessity.”

Equal Employment Opportunity Commission (EEOC) states, “An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam.

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition."

The law also requires that the employers keep all medical records and information confidential and in separate medical files.


What does a background check show?

Criminal History, Where the applicant has lived, Motor Vehicle Report, Previous Employer, Education Verification, Sanctions and much more. The specific criteria can be set up based on specific client needs.


Will a background check show I was fired?

In most cases, no. However, if the employer runs previous employment verifications it could show up.  Depends on the previous employer’s policy.


What does a background check mean?

A background check or background investigation is the process of looking up and compiling criminal records, commercial records, and financial records of an individual or an organization.


Will a background check show pending cases?

Yes. In most cases, if the clerk has entered the case into the system then it will show and will be reported.


Will a background check contact a current employer?

Yes, if the employer ordering the background check requires it.  However, in some cases, applicants may opt out if they don’t want their current employer to know they are searching for another job.


Will a background check show expunged records?

No, typically expunged records are removed from the court systems. However, if the courts have not updated their records, then the expunged records may still show.  If this an expunged record shows on an applicant’s report, the applicant may open a dispute.  In this case, when the record is expunged, then the background report is updated, the court is notified, and the potential employer is sent an updated report.


Will a background check show all of my past jobs?

A background check will only verify the jobs the applicant lists.


Will a background check show pending DUI?

Yes, if an arrest was made and the case has been entered into the judicial system.


Will a background check show unemployment?

Not typically. However, if there is a gap in employment history most employers require an explanation for the gap.


Will a background check show a warrant?

Yes, if the warrant has been entered into the system and the county with the outstanding warrant is searched. Most basic National Searches will find pending warrants.


Will a background check show an arrest

Yes


Will a background check show pending charges?

Yes, pending charges appear in a report as soon as the county clerk enters the case into the system.


Will a background check show juvenile records?

No, most juvenile records are sealed. Even if the records are revealed the standard is to not report any juvenile cases.


Will a background check show salary?

Yes, only if a previous employer is willing to reveal this information. Revealing salary information may be against company policy in many instances.


Will a background check show a suspended license?

Depending on the order, multiple sources are used, this could include County Courts, Federal Courts, Databases, Credit Bureaus, Educational Institutions, Previous Employers, Incarceration Records, FBI Databases and many other sources where public information is housed.


How do background checks work?

Orders are placed by Employers, Landlords or any others who have a specific permissible purpose (End User).  Once the order is placed all the proper disclosures and releases are signed by the actual individual the background is being performed on that give the CRA permission to conduct the searches.  Once the documentation is received the appropriate sources are searched and reported back to the end user.


How long does a background check take?

Depends on many factors including the type of searches required, the county the background is being performed, how the data is stored and retrieved.  That said most backgrounds take between 24 and 72 hours.


Why do you need a background check for employment?

Many employers want to protect their organizations from individuals who pose threats to their company.  In order to do this, they look into an individuals history to identify any potential problems that could come from hiring certain individuals. Checking an applicant’s background keeps businesses safe from liability.


Are employees protected to use medical marijuana under the ADA?

The Americans with Disabilities Act is a federal law that requires employers to provide reasonable accommodations to qualified employees with a disability. However, the ADA does not require employers to accommodate illegal drug use. While medical marijuana is legal in many states, it is still illegal under federal law. As a result, employees who use medical marijuana for a disability are likely not entitled to accommodation under the ADA.


Do I, the employer/landlord, have to show what was found in the background to the applicant?

Yes, consumers/applicants are legally entitled to see what is in their “file” (15 USC § 1681g).


Can we run a background on a minor?

Running a pre-employment background check on any job applicant requires consent, which forms a legally binding contract; however, minors cannot contract because they lack the capacity to contract.
Capacity to contract means the legal competence of a person to enter into a valid contract. Which means consent or the ability to contract has to come from a parent, or legal guardian is required to proceeding with the background check. However, we can do the background, but the majority of criminal records for minors are sealed, with the exception of when a minor is convicted as an adult.


Why are Minor records sealed?

This sealing of records is due to the juvenile criminal justice system focusing on rehabilitation and guards against the stigma of being labeled a criminal. The law that does not allow us to release that information is 18 U.S. Code § 5038(a)(6), and it states:
"Unless otherwise authorized by this section, information about the juvenile record may not be released when the request for information is related to an application for employment, license, bonding, or any civil right or privilege. Responses to such inquiries shall not be different from responses made about persons who have never been involved in a delinquency proceeding (18 U.S. Code § 5038(a)(6))."


 

Disclaimer:  Peopletrail and their representatives are not lawyers; nothing in this FAQ/Blog and/or provided by Peopletrail should be deemed as legal guidance or advice.  Users are solely responsible for complying with all local, state, and federal laws as they may relate to any information provided on this website. Peopletrail recommends utilization of a competent legal representative for any legal issues.