Licensing and Agency Investigations of Employees Under Privacy Law
Overview of Licensing and Agency Investigations
When an employment agency or professional licensing board is trying to find out more information about a candidate, it may conduct an investigation or background check to make a sound decision. In general, they have leeway to learn any information about you that is public. Some employment agencies or licensing boards run extensive background checks.
A background check that is too intrusive to be reasonable, given the job or professional license at issue, can violate an applicant’s privacy rights. There are federal and state laws that restrict investigations if they dig too deeply into your private affairs. However, many employment agencies and licensing boards will ask you to sign an authorization or consent to release your employment, medical, or other records.
In general, when employment agencies and licensing boards ask you to sign a release, they are searching for evidence of competency issues, drug or alcohol abuse, or medical or mental health impairments that could affect your ability to use good judgment. You should be aware that licensing boards, depending on how they received the authority to issue professional licenses, may have a broader scope of inquiry into your private affairs than a private employer would.
Background checks can include not only checking for a criminal history, but also confirming information listed on a resume and pulling individual credit reports.
For many people, their most private information includes not only their employment and medical records but also their financial information, including bankruptcies, and criminal proceedings. Employment agencies and licensing bodies can find out certain information, but they are restricted in how they obtain it and how they use the information they find.
Courts determine privacy cases based on the totality of the circumstances. Usually they are decided by applying a balancing test in which your reasonable expectations of privacy are balanced against the reason for seeking the information.
Obtaining Financial Information About Credit or Bankruptcy
The Fair Credit Reporting Act, a federal law, restricts businesses’ abilities to obtain job applicants’ or employees’ credit reports. Any employment agency or licensing body must get your written consent before seeking a credit report. If they decide not to hire you or promote you because of information they find in the credit report, they have to provide you with a copy of the report and tell you that you have the right to challenge it.
In addition, some states limit how businesses use reports in making employment-related decisions. They may not be allowed to check job applicants’ credit reports or only allowed to check the reports for some kinds of jobs.
Businesses can discover your bankruptcy through a straightforward public records search. You can’t do anything if a prospective employer or agency decides not to hire you because you filed for bankruptcy. However, employers are prohibited under federal law from firing an existing employee for filing for bankruptcy.
Investigations About Medical and Workers' Compensation Information
After an offer has been made, an employment agency or its client can ask any disability-related questions or require any medical examinations that it chooses as long as it does this with all applicants for the same job. Under the Americans with Disabilities Act (ADA), an employer cannot discriminate against you based on a physical or mental impairment unless it can show that your condition makes you unable to perform essential functions of the job, even with a reasonable accommodation, or would pose a direct threat. During a work assignment, an employment agency or client can ask disability-related questions or require a medical examination only when it holds a reasonable belief that the medical condition makes the worker unable to do the job.
On the other hand, workers’ compensation appeals are a matter of public record. If you have filed a workers’ compensation appeal, an employment agency or licensing board may be able to use information from a workers’ compensation appeal to show how the injury would make it hard for you to perform duties required by the license or job.