Driving Record Searches: Not Necessarily Just for Drivers Anymore

Today, more than ever, employers are checking driving records as a part of their overall background screening process.  While a majority of employers conducting this search are filling positions that actually involve driving – trucking, delivery, and ride-sharing, to name a few, more employers are also checking driving records in other situations.  For example, they may want to check with regard to those who may occasionally use their personal vehicles on company business, those who receive a car allowance, or even those who are not anticipated to drive for work at all.

First, from a risk management perspective, this search may serve as an added level of protection for employers against lawsuits brought about if the employee is involved in a negligent car accident while driving in some capacity for his or her employer or on company time.  An employer’s ability to demonstrate that this search was conducted at the outset may provide an extra layer of insulation if the employee is found at fault.  This search can also provide insight into potential drug or alcohol problems, if one or more DUIs appear on their record, depending on the jurisdiction involved.

A driving record, also known as an MVR or DMV, is a public record.  The length of time offenses stay on a driving record is dependent upon the Department of Motor Vehicles of the particular state involved, with each having its own rules and regulations.  Additionally, the number of years driving records may be returned also depends on the state law.   It could be three, five, or seven years; however, seven years is the limit for FCRA purposes.

Driving record reports may show identifying information, such as the name, address, and license number, as well as moving violations, such as speeding tickets, DUIs, and accident history, as well as license records, including points, license suspensions, and revocations.  Without conducting this search, a moving violation may only show up if it resulted in a criminal citation, which appears on a criminal background check in some states.  In other states, criminal convictions for driving under the influence of alcohol or drugs do not appear on criminal records and can only be revealed through a motor vehicle record or DMV check.

As with any search, an applicant must first provide authorization.  Employers should be aware that additional wording is required to cover health-related information, such as seizures or other serious medical conditions that may be included on driving records. Hire Image has steadfastly worked to address this issue and our compliance team has included this information on our background check authorizations, including those of several states that require additional specialized forms.

The impacts a driving record search can have on a hiring decision are largely based on the type of job being applied for and the type of violation which occurred.  Some questions an employer may want to consider include:

  • Is driving involved for this position?
  • If it is not involved, will there be occasions for this person to drive while on company time?
  • How serious is the violation?
  • How long ago was it?
  • Are there multiple violations?
  • Did the person pay the fine, if applicable?
  • What are our company policies?
  • Did he or she tell the truth during the application process?

Ultimately, as with any background check, a driving record search can reveal if a person is trustworthy and responsible in order to better protect company property, employees, and customers.  If the position includes regular driving or even the occasional use of a company vehicle, a driving record search should be an easy decision.  However, even if the position involves no driving at the outset, it may be in an employer’s best interest to conduct the search to help identify problems that could negatively affect an employee’s performance.

Hire Image understands the importance of driving record reports.  Contact us for additional information on how to incorporate them into your background screening package or to review your current background screening package.

Verifying the Top 10 Truths about Verifications

By Christine Cunneen

In our People Lie! One Certain Truth on the Importance of Background Screening blog, we discussed the fact that 78% of hiring managers have caught lies on resumes or job applications.  Taking that one step further–how are they catching all of these lies?  The answer is generally through verifications.

With so much attention on criminal history, Ban the Box, and marijuana laws, we sometimes lose sight of how vital verifications are in the background screening process.  As such, we thought it was time to look into verifying Hire Image’s Top 10 Truths about Verifications:

 

1.Employment Verifications are the most commonly requested type of verification. They not only can confirm dates of employment, positions, job duties, the reason for termination (in some states), and eligibility for rehire, but they can also reveal insights into the candidate’s truthfulness, loyalty, work habits, and integrity.  Additionally, caution must be taken if a candidate submits pay documents, which can be fraudulent.

2. The growing trend of Salary History Bans has changed the scope of many Employment Verifications. States are disallowing employers from inquiring into or relying upon the salary history of a candidate in determining whether to offer a job and in setting that person’s salary.  With more and more states adding this restriction, this question is generally no longer asked when verifying employment history.

3. Education Verifications confirm that an applicant attended the educational institution(s) claimed, including the years attended and any degrees or diplomas received. An Education Verification is a great resource for uncovering resume inflation and/or fraud pertaining to a candidate’s educational background. With an Education Verification, it is imperative to confirm that the school was accredited by an agency recognized by the Council on Higher Education Accreditation or the U.S. Department of Education.

4. Diploma Mills are a multi-million dollar industry affecting reports from high schools, colleges, and universities. Diploma mills claim accreditation by an accreditation mill and refer to themselves as being “fully accredited.”  Due to the increasing amount of diploma mills, Education Verifications are more important than ever.

5. International employment and education should also be verified. International Employment Verifications should be conducted when screening prospective employees who have been employed outside of the United States. Additionally, for Education Verifications, it is important to verify a copy of a degree obtained from a school outside of the United States since diploma mills can also be found in many other countries.  Many clients think if they have a copy of the degree from the candidate, that is all they need. However, many diplomas and degrees look authentic when they are not, even to one with experience in this area.

6. A Professional License Verification can provide additional information and qualifications by verifying the issuance of any professional licenses claimed by the applicant. The appropriate licensing agency is contacted to verify the validity of the license, the date issued, and, if applicable, the date of expiration. In some cases, disciplinary actions brought against the license holder can be discovered.

7. Insights into an applicant’s work ethic, character, ability to interact with different levels of an organization, and job responsibilities, as well as strengths and areas of improvement can be obtained through Professional and Personal References. An interview is conducted with customized questions based on a company’s needs.

8.Discrepancies and gaps in history do not always mean a person is lying and do not necessarily mean it is something with which to be concerned. There are many legitimate reasons for gaps in employment or education.  For instance, the person could have taken an extended maternity leave from a job or a semester off for a medical or family reason and forgot to account for it on his or her application.

9.Negligent hiring claims are a reality for many employers, but they can be avoided if employers take the necessary steps to help ensure a safe work environment. Verifications, such as Employment, Education, and References provide an important component in the defense against such claims.

10. Before any verification can be conducted, permission must be obtained from the candidate. Oftentimes, the person verifying requires a signed authorization.

 

Hire Image understands the importance of verifications.  Contact us for additional information on how to incorporate them into your background screening package or to review your current verifications package.

 

Harvard Rescinds College Acceptance, Spurring Social Media Debate Once Again

By Christine Cunneen

The ramifications of social media usage are again in the news.  Recent stories of Harvard rescinding an acceptance offer of a student after finding out he had used racial slurs in the past has been permeating social media platforms and mainstream news over the past couple of weeks.

Kyle Kashuv, the student involved, is a survivor of the Marjory Stoneman Douglas High School shooting in Parkland, Florida.  After Harvard admitted Kashuv, who was reportedly second in his high school class, with a 1550 SAT score, it was brought to their attention that he had made repeated derogatory racist comments via text and Google Docs in 2016.  Kashuv has stated that the comments were made when he was 16 years old and prior to the school shooting, which was a life-altering experience.   He says he was embarrassed by it and the comments are not “indicative of who [he is] or who [he’s] become in the years since.”

Harvard sent a letter to Kashuv and said it “reserve[d] the right to withdraw an offer of admission.”  In his response to Harvard, Kashuv apologized “unequivocally” for his previous actions.  He also contacted the college’s Office of Diversity Education and Support to “begin a dialogue that [he] hope[d] will be the foundation of future growth.”  Harvard responded on June 3rd, rescinding his acceptance.

As is typical in these situations, Kashuv’s predicament drew mixed reactions, with some saying he deserved to be forgiven (most 16-year-olds make mistakes and grow from them), while others are saying Harvard made the right decision (colleges are, in fact, specifically looking at the academics and behavior of teens).  Now, because of extremely thoughtless comments he’s made in his past, just like thousands of other teens, and adults, for that matter, he has missed not only the opportunity of a lifetime, but also the deadline for many colleges and had already turned down other offers.

  • He was wrong? Yes.
  • He should have known better? Yes.
  • He showed remorse?
  • The consequences are fair? Still unknown in many people’s opinions.

His situation is a reminder to all of us that comments we make and actions we take online, even those we think are “private,” can resurface at any time and be used against us.

Unfortunately, this scenario is nothing new, especially for the ivy league school, who made headlines in 2017 after pulling acceptance offers from 10 incoming freshmen after they reportedly made explicit racist and sexually offensive comments in a Facebook group.  However, amidst increasing privacy concerns over the past couple of years, the tide could be starting to shift.  According to a 2018 Kaplan Test Prep survey, only 25% of college admissions officers now browse social media profiles to learn more about admissions candidates, representing a 15% decline from the 40% who did so in 2015.  When asked if it’s “fair game” to check social media profiles to help make admissions decisions, 57% agreed–down from 68% only one year prior, in 2017.

Social media searches can also result in positive outcomes.  A previous Kaplan survey asked about positive and negative impacts resulting from content found on social media.  Some positive impact examples included:

  • “One student described on Twitter that she facilitated an LGBTQ panel for her school, which wasn’t in her application. This made us more interested in her overall and encouraged us to imagine how she would help out the community.”
  • “There’s such a negative stereotype of social media that people often forget about the positive effects of it. One student had won an award and had a picture with their principal on their personal page, and it was nice to see.”
  • “One young lady started a company with her mom, so it was cool to visit their website,” added another admissions officer.

It also pointed to some negative impact examples:

  • “We found a student’s Twitter account with some really questionable language. It wasn’t quite racist, but it showed a cluelessness that you’d expect of a privileged student who hadn’t seen much of the world. It really ran counter to the rest of her application.”
  • “A young man who had been involved in a felony did not disclose his past, which is part of our admissions process. His social media page shared his whole story. If he had been forthcoming, we would not have rescinded his acceptance offer, but we had to.”
  • One admissions officer said that pictures of a student “brandishing weapons” gave him pause when deciding whether to admit the applicant.

Yariv Alpher, Kaplan Test Prep’s Executive Director of Research explains the factors and trends involved.  “We’re seeing the result of combining trends here. On the one hand, students are savvier. They are more careful with what they post and are increasingly using more private social networks. In some cases they also create fake accounts that they only share with friends, but which are not easily attributed to them. On the other hand, admissions officers are increasingly conscious of the need to maintain students’ privacy, and are more inclined to use social media in a more targeted way. Regardless, social media remains an admissions factor for a significant number of colleges, so students should be mindful of what they share.”

The ramifications of social media usage go well beyond college admittance.  They affect employment decisions, where employers are performing Social Media Searches to discover information about applicants and current employees. They even go so far as the Federal government.  In fact, Visa applicants to the United States are now required to submit information about social media accounts they have used in the past five years under a State Department policy that started just this month.  This account information would give the government access to photos, locations, dates of birth, and other personal data commonly shared on social media.

Whether its college admission, employment, or gaining acceptance into the country, compliance and privacy issues abound.   While there is no doubt that social media is a minefield of information about a person and could be a useful source in helping to evaluate their character, when it comes to employment, specifically, employers must ensure that these searches protect applicant privacy and don’t run afoul of the federal Fair Credit Reporting Act (FCRA) or standards set by the Equal Employment Opportunity Commission (EEOC).  Even the appearance of a decision not to hire someone based on a negative impression related to race, gender, religion, or other protected classes could subject employers to a discrimination lawsuit.

Through it all, college admissions officers and employers need to be careful not to violate candidate privacy. Social media screens should be drawn only from user-generated, publicly available information and not from third-party content or password-protected sites. If the applicant’s social media settings are set to public, that information is open for anyone, including potential future employers, to review.  However, if their profile is set to private, the college admissions officer or employer cannot try to bypass those settings without risking exposure to potential liability down the road.

According to Roy Maurer with Society of Human Resources Management (SHRM), “[e]xperts agree that if employers decide to screen an applicant through social media, the best way to reduce legal risk is by having a third-party vendor perform the search instead of doing it in-house. Background-check providers that perform social media screening must comply with the FCRA and produce accurate reports scrubbed of protected characteristics.”

 

Hire Image is an expert in background screening services, including Social Media Searches.

Contact us to learn more and to assist you in navigating the intricacies of these searches.

People Lie! One Certain Truth on the Importance of Background Screening

By: Christine Cunneen, CEO, Hire Image

Most people in the background screening industry for a long time often think they’ve seen it all.  And then, something, or someone, else comes along.  No matter the story, circumstances, or day, what it often comes down to is this one certain truth – People Lie!  It could be a small fib that may not be much in and of itself (other than a possible red flag into that person’s character).  Or, it could be a huge untruth concerning an educational degree that really does not exist or a job that occurred only in an applicant’s imagination.  This unfortunate truth, coupled with safety concerns and the high costs of potential lawsuits, is why background screening is no longer an option for employers, but a necessity.

Lying on resumes, CVs, employment applications, or even LinkedIn is nothing new.  It has been going on for years.  However, today, it is more widespread than most people may think.  In fact, a recent survey conducted by TopResume reports that a staggering 78% of HR professionals, recruiters, and hiring managers have caught a candidate lying on a resume.  It is difficult to understand why they think it’s worth it.  According to Amanda Augustine, career advice expert for TopResume, a certified professional career coach (CPCC), and a certified professional resume writer (CPRW): “[l]ying during the job search is typically a deal-breaker for most employers.”

These results beg the questions–what exactly is everyone lying about and who is lying?  According to the survey, the top two most common lies are with regard to the existence, or lack thereof, of academic degree and criminal records.  With regard to who is lying, another survey conducted by OfficeTeam indicates that that age does make a difference, with over 50% of people aged 18-35 admitting to lying on a resume, nearly 20% higher than those over 55 years old.

 

(Click on Info-graphic to Enlarge)

 

What Does All of This Mean for Employers?  

For starters, if you are an employer who does not conduct thorough background screenings on your applicants, there is a high probability that you will hire someone who has lied on their resume or employment application.  We stress the word “thorough” because, as demonstrated by the cases mentioned below, it is not enough to simply do the fastest and cheapest screening so that you can say you have done one.  It really is about what makes the most sense in your industry and our ever-increasing mobile society.

There are many unfortunate situations that happen every day across the country that could be avoided if employers stop taking the applicant-provided information at face value.  Some potentially harmful situations are nullified before any real harm can occur.  For example, when a company finds out about the lie and terminates the employee immediately.  Other times, the employer or other employees are not as fortunate.  In one such case, a man with a criminal past was hired to sell vacuums door-to-door.  The man lied about his prior criminal record and because the company only conducted a regional search, rather than national, it did not discover how extensive his criminal record was, including rape.  Once on the job, he sexually harassed and assaulted three women and was later convicted of multiple felony and misdemeanor charges.  The women also successfully brought suit against the company claiming fraudulent misrepresentation (company was vicariously liable for the employee), fraudulent concealment, and negligent hiring, retention, and supervision.

In a more recent case, a woman with a criminal history not only lied, but stole the identities of various nannies and used them as her own to gain access to unsuspecting families’ homes.  While there were cursory background screenings along the way, they were not enough to discover that this woman was not who she said she was, including her expansive criminal record.  In another case, a caregiver lied about her criminal past and later stole approximately $30,000 from an elderly woman.  While a background check was performed, it only checked for sexual offenses.  Had they conducted a full background screening, her criminal record would have shown up and the family never would have hired her.

 

Lying from All Walks of Life for All Types of Jobs

Unfortunately, deceitful behavior is not limited to a certain type of person or job level.  It happens everywhere – from entry-level positions to high-level executives and even to positions of trust.  In Texas, an assistant district attorney was fired last year for lying on her application when she claimed she had never been arrested or convicted of a crime.  She had, in fact, been convicted of theft in the Cayman Islands.  As an assistant district attorney, she is held to an even higher standard of truthfulness, both as a member of the Texas Bar and a representative of the state.  Yet, according to the District Attorney’s office, her background was checked, but the databases returned no information regarding this conviction.  Thankfully, background screening procedures for all Harris County District Attorney’s Office applicants have since been amended.

There are also many high-profile cases of lying throughout the years.  You may recall a vice president of Wal-Mart, who resigned after it was discovered that he had not received the degree indicated on his resume;  the CEO of Yahoo, who misrepresented his degrees; or the first woman to be appointed the president and chairman of the US Olympic Committee, who resigned after admitting she had put false information on her resume – to name just a few.

 

What can Employers do?  

Employers should maintain a consistent and thorough background screening process with an accredited background screening provider and be diligent about screening all applicants.  This may include services such as:

  • Address & Social Security Number Search
  • Criminal Searches in the jurisdictions the applicant has lived (typically seven-years of address history)
  • National Criminal Search
  • Federal Criminal Search
  • Employment Verification
  • Education Verification
  • Reference Check

Perhaps you will discover only a small lie that ultimately does not mean much.  However, you may discover something much more serious that could potentially pose a threat to you, your other employees, your customers, or your property.  Can you afford not to find out?

 

At Hire Image, we understand and value the importance of thorough, accurate background screenings.   Contact us to discuss your situation and ways in which we can help.

 

Medical and Recreational Marijuana – What Is An Employer To Do?

By: Sarah R. Skubas

Principal, Jackson Lewis PC

Employers have long held the belief (and rightly so) that drug testing employees, both pre-employment and during employment, is an important tool in maintaining a safe and productive workforce.  This principle is especially true in high risk industries, such as healthcare or manufacturing.

Multi-state employers already struggle with differing state laws governing when an employer can require an applicant or employee to submit to a drug or alcohol test.  For example, is reasonable suspicion required?  Is post-accident testing allowed?  What testing methodology is permitted?  Adding to these various state laws is the fact that, depending on the circumstances, an employee’s alcohol or substance abuse may implicate disability obligations under the Americans with Disabilities Act (“ADA”) and state discrimination laws, as well as rights under state or federal Family Medical Leave Act (“FMLA”) laws.

A series of legal decisions limiting employers’ rights to enforce drug free workplace and testing policies in cases where an applicant or employee presented a valid state medicinal marijuana card has employers confused as to what they can and cannot do as it relates to drug testing.   The Massachusetts’ Supreme Judicial Court held that an employee fired after she tested positive for marijuana on a test administered in the hiring process could proceed with her “handicap discrimination” claim under the state’s anti-discrimination statute.  Barbuto v. Advantage Sales & Marketing, LLC, SJC -12226 (July 17, 2017).  A month later, the District of Connecticut followed suit holding that federal law does not preempt Connecticut’s medical marijuana statute’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, despite testing positive on employment-related drug tests.  Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr. (D. Conn. Aug. 8, 2017).  More recently, in the same case, the Court issued judgment in favor of the plaintiff on her claim under the state medicinal marijuana law; again, rejecting many of the employer’s defenses, including reliance on federal contractor status, which has historically been a successful argument for employers.   Id., 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018).  Courts in Rhode Island, Delaware and New Jersey have followed suit with more likely to follow.

Adding to the complexities, more and more states are passing recreational marijuana laws or are likely to do so in the coming years.

While the state-specific laws and rulings governing employers’ obligations in managing employees who lawfully use medicinal or recreational marijuana are overwhelming and in flux, employers have options.  Employers should carefully examine their corporate goals, corporate culture, states in which they operate, workforce and other risks at play in creating and implementing an effective drug testing policy.  Doing so allows employers to meet the ultimate objectives of creating a safe work environment while mitigating against potential liability.

 

Sarah R. Skubas is a Principal in the Hartford, Connecticut, office of Jackson Lewis PC. Her practice is focused on employment litigation, preventive counseling and labor relations.

Ms. Skubas defends employers against claims of discrimination, harassment, retaliation, wage and hour violations and state and federal FMLA violations. She also assists employers in providing preventive counseling, preparing employee handbooks and policies and procedures, advising on such personnel matters as hiring and firing, performance management, internal investigations and disability accommodation. Ms. Skubas also conducts employee training seminars and investigations.

In addition to her employment litigation and preventive counseling experience, Ms. Skubas has broad experience in representing employers in labor matters, including negotiations, strikes, unfair labor practice charges and grievance arbitration’s. She represents public employers before the State Board of Labor Relations and the State Board of Mediation, as well as private sector employers before the National Labor Relations Board.

Independent Contractors vs. Employee vs. FCRA – It’s Not as Settled as You Think

It is no surprise that the Fair Credit Reporting Act (FCRA) is the subject of many lawsuits and multi-million dollar class action settlements, particularly when it comes to a consumer report being obtained for “employment purposes.” This includes the “stand-alone disclosure” requirement and the two-step adverse action process when making an adverse employment decision.  What is a surprise is that even when we think FCRA issues are settled, they can arise again and be interpreted differently than they had been before.  Specifically, the issue of whether the FCRA requirements apply to independent contractors has recently been brought back to the forefront.

Contrary to the long-standing approach of many employers, in Smith v. Mutual Omaha Insurance Company, the Southern District of Iowa held that the protections afforded when consumer reports are obtained for “employment purposes” under the FCRA do not extend to reports obtained for independent contractors.  In this case, Smith applied as an insurance salesperson contractor with Mutual Omaha.  He was not hired because of an inaccurately reported felony on his background screening report.  However, Mutual Omaha did not provide prior notice before advising him that he did not get the position.  Smith brought suit, alleging a violation of the FCRA requirement of providing a pre-adverse action notice and a summary of rights if a consumer report is used to make an adverse employment decision.  Mutual Omaha moved to dismiss on the basis that Smith was an independent contractor and not an employee, so that the FCRA’s pre-adverse action notice requirement did not apply.

“Employment purposes” is defined by the FCRA as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” 15 U.S.C. § 1681a(h) (emphasis added).  The court looked at the plain language of the statute and found that there was no ambiguity– that the requirement applies only to employees and not independent contractors.  In doing so, the court followed the reasoning of two prior cases–the Northern District of Ohio in Johnson v. Sherwin-Williams Co., 152 F. Supp. 3d 1021 (N.D. Ohio 2015) and the Eastern District of Wisconsin in Lamson v. EMS Energy Marketing Service, Inc., 868 F. Supp. 2d 804 (E.D. Wis. 2012).

In the Lamson case, a Wisconsin federal court judge also held that the FCRA’s disclosure obligations do not apply to independent contractors. In that case, a sales representative filed suit against EMS Energy Marketing Service after he was terminated, based on claims that they failed to provide him with the written notice of his rights and a copy of the background screening report.  The court ruled that Lamson was hired as an independent contractor, not an employee, and that the language of the statute refers only to employees. As such, the FCRA’s requirements did not apply.

With these cases, it appears there is a trend that the FCRA requirements do not apply to independent contractors.  However, it wasn’t long before the Lamson case that the Federal Trade Commission issued contrary guidance on this particular subject, noting “’employment purposes’ is interpreted liberally” and it “may apply to situations where an entity uses individuals who are not technically employees to perform duties” in its 2011 staff report titled 40 Years of Experience with the Fair Credit Reporting Act.  Specifically, the FTC stated:

INDEPENDENT CONTRACTORS, AGENTS, AND VOLUNTEERS Because the term “employment purposes” is interpreted liberally to effectuate the broad remedial purpose of the FCRA, it may apply to situations where an entity uses individuals who are not technically employees to perform duties. Thus, it includes a trucking company that obtains consumer reports on individual drivers who own and operate their own equipment; a title insurance company that obtains consumer reports on individuals with whom it frequently enters into contracts to sell its insurance, examine title, and close real property transactions; or a nonprofit organization staffed in whole or in part by volunteers.

The FTC relied, in part, on the 1975 case of Hoke v. Retail Credit Corp., 521 F.2d 1079 (4th Cir. 1975), which noted that courts “are not constrained to limit its application by the common-law concept of master and servant,” so the FCRA could apply to independent contractors under some circumstances.

Based on the FTC’s liberal interpretation, many employers have proceeded with caution (and justifiably so) by applying the FCRA’s requirements to all applicants, regardless of their status as employee or independent contractor.  There is now a third ruling demonstrating this may not be necessary.  This conflict continues to beg the question – does an employer need to abide by the FCRA when it comes to independent contractors?

One may argue that in order to “play it safe” until there is a definite answer to this question, an employer should merely treat everyone the same whether they are independent contractors or employees.  However, this could contradict a long-standing employment law doctrine, which differentiates the two categories.  If an employer treats an intended independent contractor as an employee for FCRA purposes, could they be deemed an employee for other purposes?  This leads down a path filled with issues of interpretation and sources of potential litigation.

There is also the question about state requirements.  Other than the FCRA, certain states, such as Pennsylvania, California, and Massachusetts, to name a few, also have their own requirements when it comes to pre-adverse action notices.  Are they going to fall under the broader interpretation or the narrower one, as exemplified in the Smith case?  As far as statutory construction, all three state statutes specifically use the word “employment.”   For example, Pennsylvania mentions “employment applicant” and “suitability for employment,” while California says “position of employment” and Massachusetts uses “employment decision.”  Following the reasoning of the Southern District of Iowa, it would appear that these statutes apply to employees and not independent contractors.  However, the courts in these (and other) states do not have to follow Iowa’s reasoning and could make their own decision, independent of the ruling in the Smith case.

Ultimately, this is one district court’s opinion, but the evolution of this issue demands attention.  Other courts could take the broader interpretation that “employment purposes” includes the work of independent contractors, depending on the circumstances.  Until there is more clarification, employers may consider treating independent contractors the same way they would treat employees for the purpose of the FCRA’s requirements.  In doing so, they would be well-advised to create a separate background screening policy for independent contractors, rather than including them in the employee background screening policy.  Modifying forms to refer to the applicant as an independent contractor and not as an employee could help to avoid the question of the status of that work relationship for other reasons later.

At Hire Image, we understand the various issues surrounding the FCRA, including the distinction between employees and independent contractors.  Additionally, our disclosures and authorizations already cover contractors and volunteers.  Contact us to discuss your situation and ways in which we can help.