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One of the main concerns for attorneys pursuing governmental work is the possibility of the background check. In general, most of us-we hope-have no deep dark secrets that might be brought to light during these checks. However, it's admittedly a bit intimidating to know that some government agency is out there digging up information on you. Here we'll try to debunk and demystify the elements of a governmental background check, give you particulars on what you might expect, and how to prepare yourself…and your acquaintances.
Background checks have been standard procedures for many government positions throughout the years. However, since the terrorist acts of September 11, 2001, and other subsequent events, these background investigations have become much more particular and thorough. Below is a basic list of what might be investigated. Of course, the background check and the personal information being researched may vary dramatically, depending on the agency you are applying to, as well as the security distinction attached to your position. For example, a position in the State Department may require a more intense background investigation, as opposed to a district attorney position, because you may be dealing with classified government documents and security issues. We will discuss this a little later.
Psychological exam records
Drug test records
Property ownership & liens
Sex offender lists
State licensing board records
Family member interviews
Workers' Compensation records
It can indeed seem not just comprehensive, but overwhelming as well. This process may prove to be an uncomfortable, time-consuming, and tedious adventure. The scary part is that for many governmental jobs in the legal field, the background check isn't even the first step. Before you even get to that point, you yourself must complete a massive amount of paperwork before the investigation is even initiated. This means you must compile every aspect of your life and type it neatly into a government form.
Government investigators are given your information, and they initiate the check, analyzing all of your answers and your disclosures…plus the things you did not disclose. So, complete the applications with care. Any inaccuracies in your paperwork could cast a shadow over your character and your chances of being hired. Unlike putting some "creativity" into your resume by padding it, a background check is not the place for these things. A hiring director at a law firm may not analyze your resume word-for-word for accuracy, but a government agent will do exactly that with your paperwork. So be honest and forthcoming.
Of course, there are federal and state laws and regulations addressing the issue of what you're expected to disclose or not. The federal Fair Credit Reporting Act (FCRA) sets standards for employment checks. One caveat in this law is that it has a few loopholes. For example, the FCRA only applies to outside investigation companies that specialize in employment screening. So, if the investigation is completed by government-employed investigators, all bets are off. State laws may be more stringent, filling in these loopholes and providing for additional protections. If you hope to gain state government employment (rather than federal), check your state's employment screening law and regulations.
If you're applying for a position that is somehow protected by the FCRA, then time limits are attached to what is reportable.
After seven years, the following cannot be reported:
Records of arrest
Accounts sent to collection agencies
After ten years, the following cannot be reported:
Under the FCRA, criminal convictions are reportable indefinitely. Many states set limits on former criminal convictions, making them unreportable after seven or 10 years. Thus, again, it is important to check with your state's employment laws and regulations to be sure.
One intricacy is that employers can ask you to provide the above information. Employment applications may ask you if you have ever been involved in a civil matter or if you have ever been convicted of any crime. Under federal law, they are permitted to ask these questions. The FCRA only states that public reporting agencies are not permitted to supply employers with this information. But just because they ask does not mean that you must supply the information. If you have a tax lien from 15 years ago, for example, you may not want to report that--so think before you write. Take your time. Review the applicable law. You do not want to cast any doubt over your suitability for employment.
Some information is completely off limits. Certain personal records are confidential, and, per the FCRA, your future employers must obtain your permission before they can access these records. These confidential records include: educational, medical, and military service records.
There are also certain issues that an employment screening should not address or take into account. These issues include: disabilities, age, race, gender, and marital status. If you feel that the employer is trying to obtain restricted information, you can reference the Americans with Disabilities Act or contact the federal Employment Opportunity Commission, as well as your local state fair employment agency.
If you are being screened for a high-risk job that requires a security clearance (the State Department's Foreign Service, for example), then you may undergo a more rigorous background check. The Foreign Service's background check contains three segments, including: the initial background check, medical clearance, and psychological clearance. This check can take up to a year to complete because it is so thorough and comprehensive. Further, employers requiring security clearances may want to interview your family, friends, current or past co-workers, associates, supervisors, neighbors, acquaintances, and even previous classmates.
At first glance, this all may appear to be overly comprehensive, but there are reasons for such careful attention to detail. Employment investigators know that you will provide them with references that will sing your praises. No one is going to provide a reference who has negative comments. Because of the nature of these heightened security positions, the employer wants to know if there is any questionable conduct in your past, especially for a legal position.
But don't stress over one minor imperfection in your record. Your records are taken as a whole. Just because you made some kind of mistake years ago does not mean you are automatically disqualified. No one is perfect, and employers realize this. Of course, the gravity of the mistake is taken into consideration, but if your record is otherwise clean, then you should be fine.
What if you think your record is perfect, but you were denied employment? Under the FCRA, you can request a copy of your file. In this computer-technology age, it is important to realize that mistakes are made that can detrimentally affect your livelihood. For example, you may find that you have been an unknowing victim of identity theft, or a computer glitch may have added a criminal conviction to your record.
Of course, there are loopholes here as well. The FCRA does not apply to employers who complete in-house background investigations. So you can receive your file from a consumer-reporting agency, but you may not be able to retrieve your record from the employer. Further, if the employer claims that you were not hired because the pool of applicants was extraordinary and they made a decision to hire another equally qualified applicant, then the employer is not required to comply with the federal notice requirements.
If the employer falls under the FCRA, then they must follow certain reporting requirements. If they decide to not hire you based upon your background check and if they use an outside agency to complete the investigation, then they must send you a pre-adverse action notice, as well as an adverse action notice, stating your rights.
Background checks can be tedious, time-consuming, and a generally frustrating experience, but if you understand the parameters of what can and what cannot be disclosed, then the process may prove to be much easier. Take your time filling out the required paperwork and disclosures. Stay calm; a minor mistake may not mean you will not get the job. And above all, tell the truth. This is just a small step that you must take before you land that government job.
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