I have written about the use of background checks in general, and credit reports in particular, several times before, including here, here and here.   Now there is word that the University of Miami Medical School is facing a class action lawsuit over its use of credit reports to disqualify job applicants.

The plaintiff in this new case is African-American who was conditionally offered a position as a collector with the University of Miami School of Medicine.   After her credit report showed some delinquencies, however, the offer was withdrawn.   Her lawsuit alleges that Blacks and Latinos experience higher rates of financial difficulties, and have lower credit ratings than whites.  It also claims that there is no correlation between job success and credit ratings.  Therefore, the plaintiff alleges that the use of a credit check discriminates against her on the basis of her race, and violates Title VII of the Civil Rights Act.   She seeks certification as a class action

The EEOC has taken the position that any selection criteria that might have a disparate impact on minority applicants must be shown to be job-related and “consistent with business necessity”.  In other words, an employer who uses credit checks or other background searches needs to be able to show how that information is related to the applicant’s ability to perform the job in question.  Blanket policies which do not consider individual circumstances will open the door to charges of discrimination.

This morning there are a couple of interesting privacy stories that serve as good reminders of best practices in this area.  The first arises in connection with a union arbitration over discipline meted out to an employee of a municipal liquor store in Paynesville, Minnesota.  As you know, these types of arbitrations usually depend largely on the terms of a particular collective bargaining agreement and the specific past practices of the employer.  What makes this matter interesting, however, is that the employee’s bad conduct came to light because the employer was surreptitiously making audio recordings of everything that happened in the store.

As I discussed here,  employers are generally free to use video surveillance techniques (except in places like locker rooms where employees have a “reasonable expectation of privacy”).  It is far riskier, however, for employers to use audio surveillance, especially if the employees are not made aware of it.  Besides potentially violating federal and state laws governing wiretapping, such a practice might also constitute an invasion of privacy.

The arbitration decision in the Paynesville case mentioned above confirms this analysis.  As the arbitrator wrote: “To meet a fairness or just cause standard, employees would need to be told that they would be subject to both audio and visual surveillance and that the information gathered would be used to review their performance, and potentially used as a basis for discipline.”  While non-union employers probably don’t need to include the language about surveillance being used to review performance, the best practice is for employers who chose to use audio surveillance for legitimate business reasons to advise their employees that they are doing so; otherwise, the employee may claim that she had a reasonable expectation that her private conversations would remain private.

The second development involves credit checks on prospective employees.  As this article in yesterday’s Star Tribune discusses, a number of states are considering legislation that would limit employer’s ability to do credit checks on job applicants based on fears that it unfairly harms people in debt because of past financial problems.

As I have written about before, employers should not have blanket policies regarding background checks for applicants. Credit problems and criminal convictions should not be automatic exclusions; rather, they should be evaluated based on the job, the amount of time since the problem, and other factors.  As one Wisconsin legislator quoted in the Star Tribune rightly put it: “If someone is trying to get a job as a turck driver or a trainer in a gym, what does his credit history have to do with his ability to do that job?”

This case serves as a good reminder that employers should not have blanket policies regarding background checks for applicants. Credit problems and criminal convictions should not be automatic exclusions; rather, they should be evaluated based on the job, the amount of time since the problem, and other factors.