In this blog post, Hari Manasa Mudunuri, Student of  University College Of Law, Osmania University and Diploma in Entrepreneurship Administration and Business Laws by NUJS, describes the legal validity of a pre-employment screening policy.

The entire procedure of hiring and employing personnel irrespective of the field of expertise or work has undergone a drastic change. The employer in the modern times has become more conscious of the man force he wishes to hire. Apart from the talent of the prospective or existing employees, the employer needs to ensure that other areas of such employee’s life do not raise any red flags. These areas which come under the scanner are usually the medical history, criminal record, personality and character references, academic qualifications, identity verification, address check, lifestyle mapping, credit track, citizenship, working status, previous workplace reports, drug tests, basic financial information, psychological issues, etc.

There are a lot of factors involved in the screening procedure for the employer to consider. If the employment in question involves secrecy, high security, governmental activities and covers sensitive areas, then there is a dire need for screening the employees. Such screening takes place before and after employment. It is popularly also called the background checks. In most cases, they are usually conducted in the initial stages before the talent is hired. However, certain types of employment require precautionary measures and such screenings are carried out on existing employees on a periodic basis or as and when the need arises.

Background checks and pre-employment screening are a mandatory step in employments in hospitals, military, work involving sensitive information, national security agencies, schools, financial institutes, airports, transport services, security services- police force and private bodies, heads of high positions, etc. The precautionary measure of screening ensures that there is equality, reduces bias and provides a legal defence for the organisation, i.e. reduces the chances of being sued.

The type of screening depends on the type of employment. The pre-employment screening tests can include- general knowledge tests, aptitude tests, psychological screening, credit check, drug test, social networking activity, references, employment history and education, etc. For instance, a person being employed in a governmental institute will have to undergo extensive background tests on his personality, financial status of himself and his family, personality and character evaluation, criminal records. This is required to ensure that the person if he is employed, will not in any way jeopardise the institute or himself for any factor involving him or acts done by him, which could have been avoided had they been identified early on.

The need for such screening also stems from the current situation where the resume, CV, or the data provided by the employee is fabricated in varying levels. The screening helps the recruiters to evaluate and segregate the truth and take an informed decision, preventing any loss in time, money, and reputation and allows deserving candidates to secure the positions.

INDIA

In India, the pre-employment screening is permitted. The need for it arises from the increasing incidence of fraud in disclosing the information on the Curriculum Vitae. The basic practices in India are:

1. Verifying past employment.
2. Educational qualification and presenting with valid credentials.
3. Criminal records.
4. Compliance to various legislations.

When a candidate gives written consent, while upholding the privacy and security guidelines, an employer will undertake the screening procedure. The screening must be completed in compliance with:

• The Indian Contract Act
• The Indian Penal Code
• Information technology Acts of 2000 and 2005.

In India, it’s a difficult task to conduct criminal background checks as the records are not digitalized, and employer needs to get such information from a police station in the candidate’s area of residency.

Drug screening is not prohibited in India and the same can be done with the consent of the candidate and by following the laws in place.

For getting a background check on education, the employee/ candidate must consent, and after receiving the consent, the employer will write to the relevant institution requesting the information.

• To do a check on the medical background, the employee must consent for the same. The employee will undergo a medical check-up at a proper medical facility, and the report will be sent directly to the employer.
• The employer can’t do a medical report on certain ailments like HIV as they are against the law.
• Prior consent of the employee is required to do a credit check on him.
• India law permits an employer to do a check on the immigration status of the employee.

India doesn’t have any codified law, standards or legal requirements solely dedicated to regulating employment screening. In its absence existing laws are interpreted to regulate the screening procedures:

• The IT Act, 2000 imposes liability on unauthorised use of data stored on computer systems.
• For entities engaged in the collection and maintenance of personal data relating to individuals’ credit histories, the Credit Information Companies (Regulation) Act, 2005, attributes liability upon leakage or alteration of such data.
• Article 21 guarantees the right to privacy as part to the right to life and liberty
• RBI has formulated guidelines for banks to conduct a background check of personnel recruited as dealers from other banks and not employ persons with a criminal background as recovery agents.
• Indian companies having an ISO 27001 certification are required to conduct background verification checks on candidates for employment.

The law would permit an employer to verify and examine a candidate’s application and statements as long as it’s for employment purposes. The privacy laws in India are not very strong. It would be advisable for the company or the employer to have a stipulation in the job application providing the various screening procedures. The employer also needs to take a cautious step by specifying the company’s right to verify and a promise to maintain secrecy and confidentiality.

USA

In the USA and other multinational companies, the task of screening is outsourced to professional agencies. In the USA such tasks outsourced come under the purview of the Fair Credit Reporting Act. The hiring company must ensure that the agency they outsource must comply with the said Act or it would face legal consequences. The law in the USA has chalked out that an employer can’t take severe action against an applicant solely based on the database results, as they can be inaccurate and can contain outdated information. In most countries, criminal history is a matter of public record, and the same can be accessed by anyone. Some of the legal guidelines are:

• Uniform Guidelines on Employee Selection Procedure provides the important legal standards, which uphold the employee’s rights. Their purpose is to ensure equitability and prevent unfair discrimination while hiring.
• Fair Credit Reporting Act [FCRA] which is enforced by the Federal Trade Commission.
• Equal Employment Opportunity Commission. [EEOC]

The purpose of the screening and the federal laws is to reduce the element of bias, as they are less subjective. When the screening policies in compliance with the EEOC guidelines minimises risk as the tests don’t discriminate on the basis of sex, age, colour, etc. making them more reliable while hiring. The tests also eliminate those who are likely or have in the past put the organisation at risk and were unethical. The federal laws are enforceable- in the pre-employment screening process, on how to use the background information and disposing of such information.

The tests will be legally valid only when they are a measure of skill, traits, performance and personality. The tests must be designed to measure the abilities, and more importantly, the test was implemented and used in an acceptable manner. The tests must be tailor made for each industry, area of work and position a person is being screened for. Every job, work and industry will need to have tests that will fit their criteria and requirements respectively. Otherwise, such tests will not be legally valid.

Certain types of tests are legally invalid in the pre-employment screening process. They could be illegal due to their very nature or as per the law of the land. Some of the criteria are:

1. There must be a written consent of the employee.
2. Drug tests need to be conducted only after meeting the legal requirements.
3. Medical exams, intravenous tests can’t be conducted without permission.
4. Unless the particular test is job-related and a necessity due to the nature of work, personality tests/ Mental health tests is conducted only in the right setting and by professionals. They are conducted in jobs that have public safety implications.
5. Lie detector tests are prohibited (subject to exception) at all stages of pre and post employment screening under the US laws.
6. Credit checks are subject to regulation, meaning that bankruptcy is a matter of public record, but the same can’t be a ground for the employer to discriminate against such candidate.
7. Military records are usually released only after obtaining consent that happens in exceptional cases.
8. To obtain school records, prior consent of the student is required.

Conclusion

There is a lack of a structured legal framework for the screening process in India. Steps are being taken to overcome this deficiency. The Government intends on using the Unique Identification number to link identity databases, education, and professional personal and criminal records. In 2005 the National Skills Registry [NSR] was established to provide a database with details of education and employment background of Information Technology Professional in India. Similar attempts were made when certain bodies have come together to form a database in their respective fields. This was seen in the case of Retail Association of India created a database for the background of the personnel employed in the retail industry and in the case of insurance companies coming together to form a database of those employed in their industry. The USA has a proper legal framework to ensure the reliability of the system and make the parties accountable for any discrepancies.

References:

1. http://www.criteriacorp.com/resources/definitive_guide_legal_issues_of_preemployment_testing.php
2. justifacts.com
3. http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Articles/Background%20Checks%20in%20India.pdf
4. https://www.careerwise.mnscu.edu/exoffenders/find-job/employment-checks.html