Cracking the Code of Silence

The firm handshake, neatly pressed suit and sterling references that used to cover a multitude of blemishes in job hunting don’t go nearly as far today. In recent years, employers, mindful of workplace violence and negligence lawsuits, have begun scrutinizing potential hires much more closely.

What some applicants may not know is that in addition to checking previous employment and personal references, many companies now scan driving and credit histories, check for criminal offenses and even look into how many lawsuits interviewees have filed or others have filed against them.

About 95% of U.S. corporations surveyed say they now conduct a background check of some sort, says Detroit-based human resources firm Aon Consulting.

As effective as these checks may be at weeding out potential workplace problems, analysts say in many cases they can also be intrusive, inaccurate and make it easier for employers to violate federal hiring laws.

Consumer reporting agencies often don’t stop at public records. If they’re stumped by lack of information from previous bosses, many delve into applicants’ personal lives, talking to neighbors, relatives and former co-workers. And these people may be giving out more personal information than an applicant intended to share.

Furthermore, by using the information gleaned in background searches, employment attorneys say, many employers can subconsciously or even consciously discriminate based on race, religion, political affiliation, sexual orientation or disability--things federal guidelines prohibit them from asking about in interviews or on an application.

And even if this screening information isn’t used to dismiss a candidate, it may be used as a “tiebreaker” between two competing applicants, says Kurt H. Decker, a Pennsylvania attorney who consults with companies on privacy issues and who is the author of the forthcoming “Hiring Legally: A Guide for Employers and Employees” (Baywood Publishing.)

Still, many employers prefer using an independent consumer reporting agency to running their own checks, because they’re afraid of being sued if they press too hard on their own, says Barry Nadell, owner of Encino-based Infolink Screening Services. “Companies are finding it difficult to get information when they do call [previous] employers.” By going through a consumer reporting agency, he says, it’s harder for applicants to contest the investigation in court, unless they can prove the information was given with malice or if the agency violated federal provisions.

Still, many applicants never learn that information obtained in background checks was used to reject them because employers often don’t share that information with applicants, even though they are required by law to do so. Most job seekers simply assume the position was given to someone with better qualifications, Decker says.

Last year, some job seekers who were rejected without fair notice had their day in court. Donna Matthews, who interviewed for a position at Government Employees Insurance Co. in San Diego, won a civil judgment on behalf of 800 GEICO applicants who were turned down for jobs based on their bad credit but who were never notified that it cost them the job. Instead, they received rejection postcards.

Under the Fair Credit Reporting Act, which was passed in 1982 and broadened in 1997, employers are not only required to get an applicant’s authorization for a background check, they’re also required to notify the potential employee if they find something that could cost them the job. Employers must also furnish the name, address and telephone number of the consumer reporting agency that furnished the report and tell the applicant how to receive a free copy of that report. The intent is to allow potential employees to correct any inaccuracies in their report and to give them a chance to explain what was found.

Without this notification, and without access to an employer’s personnel records, it would be virtually impossible to prove whether an employer used inappropriate information to discriminate in the hiring process, says Joseph Posner, an Encino-based attorney and founding board member of the California Employment Lawyers Assn.

“If the company didn’t tell [an applicant], how could they find out? There’s a code of silence among personnel people,” Posner says.

Employers and screening agencies insist that they only collect enough information to judge whether a potential employee is suited for a job, and they subject all candidates to the same scrutiny.

“We are just trying to eliminate candidates with convictions that involve dishonesty, violence, sexual offenses, fraud and substance abuse,” says Walt Kainz, manager of corporate security at Woodland Hills-based insurer Health Net. “We want to make sure this is a safe and secure working environment for all employees.”

After facing several internal theft investigations, Health Net began running background checks three years ago. Now, in addition to checking California criminal convictions, the company also uses a potential employee’s Social Security number to make sure he or she has no criminal offenses elsewhere in the country. They also take a hair sample to test for drugs.

Kainz says Health Net does not pay attention to an applicant’s driving record or credit history unless it’s directly related to the job they’ll be doing, like driving a supply truck or handling money. And, he says, some minor offenses can be forgiven if applicants can fully explain the situations surrounding them.

Still, some analysts say, without enough pressure from regulatory agencies and employee rights groups, most companies will manipulate background checks to look for the lowest-risk employees who will cost the company the least in time and medical leave.

And there’s little job seekers can do, experts say, but submit to the screenings. “The reality is, if you object to anything, you’re not going to get the job,” Posner says.

But, Posner cautions, don’t volunteer any unflattering information either. What you consider a blot on your record may have been overlooked by employers who find it irrelevant to the job you’re applying for. However, if they do bring up a past incident, experts suggest calmly and succinctly explaining the circumstances surrounding it.

Decker also cautions job applicants to watch what they say over lunch or at a mixer. A casual environment, he says, often prompts people to disclose things an employer can’t legally ask during an interview but would like to know, such as if an applicant is a parent or if he or she has health problems.

“People want to look like a real person so they reveal all of these things,” Decker says. But when you start talking about your daughter’s problems in school, you may be labeled as someone with burdensome child-care responsibilities, he says.

Also, make sure your credit record is accurate. Some experts suggest checking it every year. If you find erroneous information, the FCRA requires credit agencies to correct it within 30 days.

When leaving a job, talk with your employer about what kind of references you expect.

If your work performance was satisfactory or even stellar, let it be known that you want that information passed along to prospective employers.

If companies receive more than your rank and dates of employment from a company, they’re less likely to think you’re hiding something, analysts say.