With the increase in Ban the Box legislation, many business owners mistakenly think that it is illegal to ask for the applicant’s date of birth on a background check authorization form. The situation is complex. Asking for a date of birth is not illegal but both the timing of the question and how you utilize that information could be illegal.
It is vital to perform background checks when hiring and throughout employment to avoid accusations of negligent retention and negligent hiring. Negligent hiring lawsuits average almost $1million. We wrote a blog post where one employer had to pay $54 million for a negligent hiring claim.
The Age Discrimination in Employment Act (ADEA) protects applicants from age-related discrimination if they are aged 40 or older. As a result, some candidates over the age of 40 who are asked for their date of birth on a background check authorization might think it was a factor in not being hired. You should always take care to never use or appear to be using date of birth as one of the factors in making employment-related decisions if it is included on your background check authorization form. This is why we recommend not including the date of birth on a preliminary hiring form.
If there are potential downsides to using date of birth, why would businesses still include it on their background check authorization forms? Date of birth can be a vital identification tool when sorting through criminal records, particularly when the applicant has a common name. The legal system does not use social security numbers to file criminal actions, since records are public. With over 300 million workers in the United States, the likelihood that two people have the same name in the same state or county is quite high. The only way that you can be reasonably sure you have the right person is by adding in birthdate verification.
How can you ensure that you don’t appear to be using the birthdate that you received on the background check authorization in an improper fashion?
- Separate the background check authorization and date of birth request from the application.
- Only provide date of birth information on a strict need-to-know basis when hiring. For example, give the information to the consumer reporting agency performing the background check and not to the hiring managers who would be directly involved in decisions that the date of birth could impact.
- Always work with experienced employment counsel to review your application documents to ensure there is no appearance of impropriety.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates.com