Are Background Checks an Invasion of Privacy?

By Jen D., February 18, 2019

Are you wondering if background checks are an invasion of privacy? This concern is shared amongst both employers and employees. It can feel violating knowing that someone is conducting a comprehensive background check on you.

Employers (particularly those in charge of small to mid-sized businesses) also worry about what is appropriate to search, as they may lack the legal support more large companies finance. Want to know what is off-limits? Let’s explore what background checks are and are not.

Are Background Checks an Invasion of Privacy?

First, a background check is typically a reasonably everyday look into public databases – including criminal, commercial, and financial records. Employees have individual rights, just as all United States citizens do. While those rights aren’t necessarily specific to the hiring process, they do protect those in the hiring process. Part of this protection is through Constitutional Amendment IV 1789 (revised 1992).

Since an individual’s home, papers, person’s, and effects are protected from unreasonable searches or seizures, what remains is a legal ability for employers to look at information deemed publicly accessible. In New York, even searching for someone, you may hire can be against the law, without their consent (check state laws).

Meanwhile, in California, employers are required to disclose any (ex., criminal) information they find which might prevent hiring. Whereas, when they hire a third party to a background check, laws are instead overseen by the Federal Fair Credit Reporting Act.

But What About Private Information?

When you fill out a job application or submit a resume, you will often be asked for personal or businesses references. While you should give your potential employer explicit consent that they may contact your references, always assume they may reach out to former employers and ask them questions. While there are no federal laws about what can or cannot be disclosed, most states have filled in this gap with their own rules.

For instance, in California, a former employer can confirm employment dates, your job title, and if they would hire you again. They operate under something called common interest privilege, which means the information they share about you cannot be used as court evidence.

There is a caveat:

If they share information with the intent to harm you, it is considered appropriate (as they would have broken the law to provide false information). This means that an employee would have the right to sue the former employee who tried to undermine their hire elsewhere fictitiously.

Permission as an Employer

As an employer, you are allowed to check your employee’s references or background check them through a service, so long as you ask for their permission to do so. Most of the time, employees anticipate that employers will check their references and employment history.

Special consideration should be given before running a check of social security number, driver’s license number, or credit history. Make sure your employee is aware of your background check, verbally agrees, and signs a consent form.

Loophole?

As the online world gains steam in most industries, it is easy to search for anyone by name. In many states, doing so does not require specific consent or permission (since a search engine shows public information found on the web).

This means that it is vital to search your name and details and see what might be visible to your friends, family, co-workers, employees, and employers. A search of this kind could be as simple as looking someone up on social media sites, by name, or reviewing their public profiles and looking up their usernames.

Sites like Social Catfish perform algorithm-based searches, to give you the most information you can find anywhere. This is done through a fine-tuned search of the information found in search engines like Google or Bing. Social Catfish’s proprietary algorithm will provide you with information that used to require consent for a private background check.

If you’re looking for a job or wanting to hire someone, check your name first at Social Catfish today: