The recent efforts by the Kentucky Labor Cabinet to enforce the state’s law prohibiting employers from charging job aspirants for background checks (and medical tests) brings to light a dormant issue which has avoided much discussion and detection. Many states in the US do make it illegal to pass on such charges to prospective employees but we all know that the matter is more honored in its breach. Kentucky’s plan to impose penalties ranging from $100 to $1000 per aggrieved worker does create a daunting deterrent to such violations in the future. Voluntary admission of transgression provides safe harbor benefits which will not apply to cases which are tried on the basis of a complaint.
Background checks are used to screen a person on the basis of their criminal, commercial and financial records and typically help with past employment verification and credit score to establish trustworthiness and for safety and security reasons.
Various searches can be conducted with focus on verifying aspects of a person’s Education records, Employment records, Licensing records, Medical, Mental, and Physiological evaluation and records, skills assessment, reference checks; Citizenship, immigration, or legal working status; Driving and vehicle records, Drug tests, Financial information, Military records, Social Security Number; credit reports and Patriot Act searches, arrest, incarceration, and sex offender records, Litigation records with specific focus on participation in qui tam suits.
Resume frauds and threat of negligent hiring charges generally drive the need for background checks higher. Using them purposes like unlawful discrimination (or employment discrimination), identity theft, and violation of privacy is illegal and carries its own consequences.
While background checks are necessary and useful in different ways for both businesses and individuals, there is no consensus on the method employed to obtain them. The numerous queries posted in forums online stand testimony to the reigning confusion in the minds of people due to the varied opinions being circulated like some of the following:
Perception of Employers:
The general consensual opinion likes to look upon employees being asked to pay for the background check as a scam and something one must avoid doing when seeking a job though it is acceptable when they are looking to rent a house. Whether it is illegal to make the employee pay for a background check or not, employers do end up asking the candidates to cough up for the checks.
No Real Answer:
The stand taken by the different state governments also makes it difficult to answer the question on who picks up the tab for the background checks. At best, the answer goes ‘It depends’ – because it really depends upon the particular state the employer is in and the laws in force in that state. This is so because some states, like Kentucky, expressly prohibit employers from passing on the cost of pre-employment screenings while others do not render it unlawful. Even in such states, some employers choose to assume the costs, as a normal cost of doing business or as a HR best practice, as the case may be.
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