Pre-Employment Background Checks

Business owners want to ensure they are hiring strong candidates for jobs.

Both employers and employees should know what tests employers are allowed to ask of employees and what are beyond the extent of the law.  These tests may only be used to assess a job candidate’s fitness for the job and not for any discriminatory reason.  No employment testing may screen out an employee based on age, disability, race, genetic information, national origin, pregnancy, color, religion or gender.  Any test that does screen out employees in this manner is considered a violation of both federal and Minnesota law.

The most common job screening tool for employers is a background check.  Usually, employers will use a job application or résumé to confirm information the candidate has provided regarding references and previous jobs.  Other employers will do a more comprehensive check including criminal background.  Some jobs in Minnesota require comprehensive background checks, including those working in healthcare professions or as security guards.  Employers should be sure to have written policies regarding background checks and employees should be sure to be honest with employers about information placed on an application.

Other common tests that an employer may request pre-employment are a physical exam and/or drug test.  This physical exam is limited to testing for job-related abilities.  Employers should tread lightly in creating physical exams for potential employees to make sure they are properly accommodating employees who are disabled and may need the employer to accommodate limitations of a disabled person.  Pre-employment drug screenings are also used to screen potential job candidates.  Drug testing is acceptable under Minnesota and federal law so long as the employer has a written drug testing policy and that the testing is done through an approved third-party lab.

Credit checks are another common check done by some employers.  The consumer credit report can be useful for employers who are concerned about employees handling money for the business because the consumer report will show a candidate’s credit standing, ability to pay on time and indebtedness.  Before an employer is allowed to pull a credit report on an employee, the employer must tell the employee in “clear and conspicuous” language that the report will be obtained for employment purposes.  Additionally, the employee must authorize permission for the report with a signature and the employer must prove to the agency it has notified the job candidate.  Additionally, if the employer takes an adverse action based on the report, such as refusing to hire the job candidate, the employer must provide a copy and must not be in violating of any laws such as equal employment opportunity law in taking the action.

Employers must be careful to follow all applicable laws when screening job applicants so as to avoid legal problems, such as the Minnesota Human Rights Act, the Americans with Disabilities Act and the Minnesota Access to Consumer Reports law.  Employees should also be aware of what an employer is allowed to request from a job applicant and what information is off-limits.