Privacy and the Applicant

The interviewing process should not be one that is fraught with legal risk.  However, privacy concerns are on the rise for employers, particularly with respect to what information can legally be asked of an applicant, and what information may be obtained on a particular applicant with or without the applicant’s permission.

As an employer, can you ask if the applicant is a US Citizen?  Can you ask if they need special accommodations to perform the job?  Can you obtain a consumer report on an applicant?  Are there any circumstances where an employer could ask about an applicant’s credit history? This article provides some guidance on these important issues.

The Immigration Reform and Control Act requires employers to verify the eligibility of each employee to work in the U.S.  That said, employers should not ask directly whether the employee is a U.S. Citizen but may choose to ask if the candidate can verify that they are allowed to work in the U.S. Assuming the candidate answers in the affirmative, it is up to them what to provide to show the same. As long as it pertains to the candidate, looks authentic and is one of the accepted documents listed on the I-9 compliance form, the employer has fulfilled their obligation to verify the eligibility.

Generally, an employer may ask about the applicant’s abilities to perform a certain job, but not his or her disabilities.  However an exception to the general rule is where the applicant has disclosed that they have a disability or if the applicant’s appearance makes it obvious that he or she has a disability. In that case, assuming it is reasonable to ask if the applicant will have any difficulty performing a specific task, the employer may ask the applicant if he or she will need any reasonable accommodations to perform certain job-related tasks.  If the applicant says no, the employer’s inquiry of the disability must end.  If the answers is yes, the employer may ask about the type of accommodation that will be needed.

FCRA generally restricts background checks on job applicants. However, certain exceptions apply. For example, since September 11, 2001, there has been an increase in applicant background screening.  Similarly, since there has been greater attention to child abuse and abductions, applicants for positions that work with children must agree to a background check. For example, the Federal National Child Protection Act authorizes state officials to access the FBI’s national crime information center database for some positions that involve contact with children. Likewise, background checks for those who work with the elderly or disabled are mandated by law.

FCRA prohibits obtaining a consumer report unless a permissible purpose exists. Pre-employment screening for purposes of evaluating a candidate for employment is one such permissible purpose. Before obtaining a consumer report, employers must (1) tell the applicant in writing that you may use the information in the consumer report to make decisions related to his or her employment, and (2) obtain written permission from the applicant and (3) certify compliance with FCRA to the company from whom you are obtaining the report.  Further, employers must check state law concerning whether or not the use of credit reports are prohibited for use in making employment decisions.  In Illinois, the Employee Credit Privacy Act, 820 ILCS 70/1 et seq. (“ECPA”) prohibits the use of a candidate or employee’s credit history or other credit information as a factor in hiring, termination or decisions concerning the terms of employment.  The Act also prohibits the act of inquiring into a candidate’s or employee’s credit history or obtaining such a report from a consumer reporting agency. However, where certain job duties specifically involve the handling of money or protection of other confidences, an exception exists to allow employers to use credit information.  Such positions may include those that require bonding by state or federal law, positions involving unsupervised access to cash or assets valued at $4500 or more, those that involve signatory power of $100 or more per transaction, managerial positions that involve significant control over the business and positions that have access to financial information, trade secrets or other confidential information.

Under the Pregnancy Discrimination Act, employers may not discriminate on the basis of pregnancy or gender, meaning that they may not refuse to hire, refuse to promote or fire a pregnant employee because of her pregnancy, or pregnancy-related condition. Likewise, employers cannot ask a pregnant applicant a question they would not ask an applicant who is not pregnant, and employers cannot require employees to give notice of a pregnancy unless it serves a legitimate business purpose and is not used in a retaliatory manner against the employee.  Various state laws also control anti-discrimination and accommodations to expecting mothers and new mothers.  The Illinois Human Rights Act generally tracks the federal law in this area pertaining to the prohibition of discrimination and the requirement to provide reasonable accommodations.   In Illinois, the law specifically includes pregnancy, childbirth and medical conditions related to pregnancy or child birth.

If you have any questions regarding privacy concerns for employees, please contact Levin Ginsburg at (312) 368-0100.