Employment Background Checks
When an employer advertises an employment position, they are looking for candidates with the required skills and experience who are also reliable and trustworthy workers. Many employers will go through the extra step of having a third party vet prospective employees through conducting employment background checks. There are several legal considerations involved with undertaking employment background checks, including the need to obtain consent, comply with privacy and discrimination laws and deal fairly and correctly with applicants with criminal convictions. Employers must ensure that their employment screening process balances their reasonable need to vet candidates while remaining legally compliant.
Some employers have a legal duty to conduct specific background checks before employing workers, while other screening is discretionary. For instance, it is a requirement to run a Working With Children Check for any employee who would interact with children in the normal course of their work. This is a risk management strategy that is considered necessary to protect vulnerable children. Similarly, there are statutory requirements for background checks to be completed for workers who provide National Disability Insurance Scheme services.
Candidates applying to work for the Australian Government must pass the security screening standards outlined in the Protective Security Policy Framework. These standards include the requirement to verify identity and eligibility to work in Australia. There are further statutory requirements for candidates for state and local government positions, such as security clearance checks for those who will work with protected information. In contrast, while it is not a legal requirement, it is usually appropriate and reasonable for an employer to conduct a police check for a candidate who would have access to the personal data of members of the public or control of financial records or funds.
Anti-discrimination law
Australia has federal and state laws that prohibit discrimination at work based on protected attributes, such as age, disability and religion. Therefore, any background check must be mindful of these laws and ensure that candidates are not unfairly excluded on the basis of one or more of these attributes. Employers can ensure compliance with these discrimination laws by applying their screening process equally to all applicants, and by only using job-related criteria to screen applicants. For instance, it is not reasonable to only perform criminal history checks on candidates who are young men or who come from a particular racial or economic background.
Criminal history
One of the main purposes of a background check is to determine whether the person has a criminal history, but actually finding evidence should not, in itself, always exclude the candidate. There are laws in Australia, such as in the Northern Territory and Tasmania, that make it illegal to discriminate against a prospective employee on the basis of a criminal record. These laws are intended to protect individuals with a criminal record from being unfairly treated when they seek employment.
If a police check does return with a disclosable outcome for a job candidate, the employer should look at the date it occurred and the nature of the offence. Minor offences that occurred years before the job application may not be a good indicator of the candidate’s current character. It is also important to consider whether the offence has any bearing on the advertised position. For example, an individual who has a criminal history of violence against minors would not be a suitable candidate for a job in a school, yet a shoplifting offence from a decade ago might have little relation to the candidate’s ability to teach history. The employer should take legal advice to understand their potential liability if they intent to reject an otherwise competitive applicant based solely on a background check.
Consent and privacy
It is important for the employers to obtain explicit, written consent before conducting a background check. As part of this consent, the employer needs to explain what information they will gather, how it will be collected, and how the resulting information will specifically determine suitability for the role. Employers need to keep in mind that a background check is intrusive, and that the information gathered through these checks is often sensitive and confidential. The employers must collect, use, protect and disclose this confidential information appropriately, otherwise they could breach the Privacy Act 1988. Under this Act, employer must follow certain privacy principles to:
- only collect and use information that is required to assess the candidate’s suitability for the position;
- inform the candidate of the type of information that will be collected and why;
- not disclose the collected information to anyone apart from those directly involved in the recruitment process;
- ensure that the collected information is current; and
- notify the candidate if a third party is conducting the background check.
Background checks are an important step in the recruitment process, but they do have legal implications that employers need to consider. Taking legal advice can help you understand the specific laws in your jurisdiction, and develop appropriate processes and workplace policies. Contact Go To Court today on 1300 636 846 to find out how our solicitors can help you.