Background and Reference Investigations Flashcards

A public agency uses a third-party vendor to conduct criminal background checks on finalists. Before deciding not to hire a candidate based on information in the vendor's report, what is the agency required to do under the Fair Credit Reporting Act (FCRA)?

Answer: Provide the candidate with a copy of the report and a summary of their rights, allowing them a reasonable time to respond.

The FCRA requires employers to follow a specific two-step process when taking adverse action based on a consumer report. The first step is the 'pre-adverse action notice,' which includes giving the candidate a copy of the report and the 'A Summary of Your Rights Under the Fair Credit Reporting Act' document, and allowing them a reasonable period (typically five business days) to dispute the information before the employer makes a final decision.

Which of the following best defines the legal tort of 'negligent hiring'?

Answer: An employer's failure to exercise reasonable care in selecting an employee, which results in a foreseeable injury to a third party caused by that employee.

Negligent hiring is a claim made by an injured third party against an employer. The claim alleges that the employer knew or should have known about an employee's background or dangerous propensities (which a reasonable background check might have revealed) and failed in its duty to protect others, such as customers or co-workers, from that employee's actions.

The primary legislative goal of 'Ban the Box' or 'Fair Chance' laws is to:

Answer: delay inquiries into a candidate's conviction history until later in the selection process, allowing them to be first judged on their qualifications.

The core purpose of 'Ban the Box' legislation is to remove the question about conviction history from the initial job application. This prevents applicants from being automatically screened out. The inquiry is typically postponed until after an initial interview or a conditional offer of employment, ensuring that candidates are first evaluated on their skills and qualifications for the job.

During a reference check for an accounting position, a candidate's former supervisor states that the candidate is 'not eligible for rehire.' When asked for more details, the supervisor declines to comment further. What is the most prudent next step for the hiring agency?

Answer: Document the 'not eligible for rehire' statement and proceed with an individualized assessment, potentially discussing the matter with the candidate.

While a 'not eligible for rehire' statement is a significant red flag, making a hiring decision solely on that comment without context is risky. The best practice is to document the information obtained, consider it in the context of all other information gathered (the 'whole person' or 'individualized assessment' concept), and, where appropriate, give the candidate a chance to address the information before making a final decision.

A former employer who provides a truthful, job-related, and non-malicious reference about a past employee to a prospective employer is generally protected from a defamation lawsuit under what legal principle?

Answer: Qualified privilege

Qualified privilege protects a person from liability for defamation when they make a statement to someone with a legitimate, shared interest in the information. In the context of reference checks, a former employer has a qualified privilege to discuss a past employee's performance with a prospective employer, as long as the statements are made in good faith, without malice, and are based on facts.

When conducting a reference check with a candidate's former supervisor, which of the following questions is MOST appropriate and legally defensible?

Answer: Could you describe the candidate's job duties and their performance in carrying them out?

The most appropriate and useful information from a reference check is job-related and verifiable. Asking about job duties and performance is directly relevant to predicting success in a new role. Asking about workers' compensation is illegal under the ADA. Asking about family status is discriminatory. While asking about salary is not always illegal, many states and localities have passed salary history bans, making it a legally risky area.