A number of web sites that specialize in selling raw data online over the Internet have targeted employers for the purpose of selling data about potential employees. In addition, a popular subject of spam e-mail is promotional web sites and software that supposedly allow people to find out anything about anyone. Employers who are concerned about staying out of court need to view these database web sites with extreme caution.
The sites offer data that should not be used for employment purposes. For example, such sites typically offer bankruptcy records. However, employers need to be aware that the federal law provides express prohibitions against discriminatory treatment of debtors by private employers. A private employer may not discriminate with respect to employment if the discrimination is based solely upon the bankruptcy filing. 11 USC 525
One site offers to sell data to employers for the purpose of revealing an applicant’s relatives and associates, or to confirm property ownership. An employer who obtains or utilizes data for these purposes is likely to find that they are in violation of the federal EEOC rules as well as state fair hiring rules.
These sites also offer employers so-called instant “national criminal searches.” As outlined in previous ESR newsletters, there is no such thing as a “National” criminal search available to private employers from a private company. These are actually searches of a hodgepodge of publicly available databases that have deficiencies caused by issues related to completeness, accuracy and timeliness. Although a search of these available criminal records can be a valuable secondary search tool for employers in some states, employers must not be tricked into thinking that they are buying a search that will demonstrate Due Diligence in court without careful consideration of the entire safe hiring practice. Some of these sites fail to mention the federal Fair Credit Reporting Act (FCRA), as well as numerous state laws, which are critical to understand as far as legal compliance is concerned.
-Lester S. Rosen
President of Employment Screening Resources
(c)2000-2002 by Lester S. Rosen