Dear Matt: An online application for a job asked me to complete a “pre-employment background check” section. It said a third party is doing a background check and asked for date of birth, social security number and driver’s license info. Why would a company ask for this information during an initial application process, and is it legal?
Matt says: Asking for this information on an employment application is not illegal, but it is a very bad practice, says Norma Beasant, a Twin Cities-based human resources consultant (talentohrc.com).
“Due to identity theft and general privacy concerns, employers should not request this information on an employment application form,” says Beasant. “Applications are often viewed by individuals who do not have a need to know this information. An employment application should request only information directly related to an applicant’s ability to perform a specific job.”
Title VII of the Civil Rights Act and the Minnesota Human Rights Act prohibit employment discrimination based on age, national origin, gender, race, religion and other factors, says Larry Morgan, Principal and owner of Apple Valley-based Orion HR Group (orionhr.com), a company that provides a wide range of HR services to clients in the public and private sector. Asking for date of birth and social security number may give rise to a claim of age and national origin discrimination. For example, a claim could be made that the employer is using the date of birth area as a screening device to hire younger employees. Similarly, the social security card may limit others who have obtained U.S. work authorization but do not have a social security card, providing a possible national origin discrimination claim.
In Minnesota, the Federal Credit Reporting Act (FCRA) states that if a candidate is denied employment due to a negative rating or item found in the background check, the employer must inform the potential employee of the negative rating and give them time to respond and correct any errors in the report.
Morgan recommends saying this, if the system allows it: “This information will be provided upon a contingent employment offer”. Next, identify the hiring manager/HR and send an email with a résumé stating you are interested in that job and that you can provide this information at the time of a contingent job offer. The employer may insist that the applicant follow the online process or application form, but if enough candidates object, the employer will be forced to change this practice.
“I often find employers are simply not aware of the potential risk,” says Morgan. “Ultimately, you may be disqualified from the applicant pool — but would you really like to work in an organization like this?”
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