|
« AAUP Homepage
|
Legal Watch-Background Checks: When the Past Isn't Past
By Ann D. Springer
Should youthful drug use bar someone from getting a faculty appointment? What about that ticket for reckless driving? Should someone who has filed for bankruptcy be allowed to teach English? Or accounting? Questions like these challenge faculty and administrators who consider instituting background check policies.
With our litigious society, and the heightened national interest in security, the issue of employers conducting background checks on employees and applicants is increasingly salient. Faculty are concerned about privacy intrusions, and administrations wonder if background checks are the answer to employment liability and security concerns. The law does not generally prohibit investigations into employees' or applicants' backgrounds, and background checks have become common practice in the corporate sector. However, such investigations can be problematic, especially in academics.
For example, University of Texas faculty concerns about privacy and a negative effect on recruiting led to a very public debate about a proposed background check policy. Officials responded to concerns by scaling back the policy to apply only to "security sensitive" positions. It is concerns like these, perhaps, that lead most institutions that implement background checks to do so on a limited basis, and rarely apply them to faculty.
Background checks allow employers to check on employees' financial, criminal, and civil history. They can be as "minor" as a credit report, or so extensive as to include interviews with neighbors and friends. A typical report might consist of a criminal or civil records check, employment verification, reference checks, and educational verification. Much of this information is public and is available for a fee to any employer.
However, there are also consumer protections that allow individuals to know what information is being sought and provided. Under the federal Fair Credit and Reporting Act (FCRA), employers must obtain an applicant's written permission before obtaining a report from a consumer reporting agency bearing on an individual's "character, general reputation, personal characteristics or mode of living" to use in evaluating employment eligibility. Employers who take adverse action because of something in the report must provide notice and a copy of the report used before taking the action. Individuals must also be given the opportunity to see, contest, and correct erroneous reports. These protections allow people to make sure that the information given out about them is accurate. Many state laws also give additional protections that go beyond federal law. For example, many states restrict the provision and use of information of questionable relevance, such as arrest records or misdemeanor convictions. Faculty can check with their state's attorney general or local consumer protection agency for state information.
Background checks also raise issues for administrations. In addition to the financial and operational costs of running the checks, monitoring, securing, and applying the results, and complying with FCRA and state laws, other liability concerns may make background checks more burdensome than useful. For example, the information discovered may be unrelated to an individual's ability to perform the job. Will the institution use it to disqualify otherwise qualified candidates? What is applicable, what isn't, what is actionable, what isn't? What if an employee commits a crime or breaks the law? An employer who knew of such past bad acts may be held responsible for failing to act on that knowledge, even if future actions were and are difficult to predict. Thus, unless administrators are willing to act on every possible background problem, they risk increasing their liability by conducting background checks. In addition, checks must be performed and applied fairly. Not only could selective application of a background check policy result in direct discrimination, but even equally applied policies that disproportionately affect a protected class of employees could result in a "disparate impact" discrimination claim.
These concerns should make everyone wary of background checks. Equally important is the message such checks send. As AAUP policy on the analogous issue of drug testing states, "No inherent conflict exists between academic norms concerned with professional competence and individual privacy rights. Adherence to professional standards guards against undue intrusion on individual privacy, and respect for individual privacy guards against dilution of professional standards by personal behavior lacking a nexus to professional fitness." Blanket background checks upset this balance, provide little benefit to administrations, and often create a counterproductive atmosphere of distrust.
Ann Springer is AAUP associate counsel.
|