Employment Verification Laws Explained

Post A Job For Free, Promote It For A Fee

Post a Job

One of the most important aspects of the hiring process is to make sure your potential employee is honest about their identity, their work history, and their eligibility to work.

Although you would love to take their word for it, it is your responsibility as an employer to verify all necessary information. This means contacting previous employers and asking questions while still respecting the legal rights of others.

Key Takeaways:

• Form I-9 is used to verify if an employee is authorized to work in the U.S.

• HIPAA regulations prohibit sharing any medical information during the employment verification process.

• Title VII of the Civil Rights Act prohibits employers from discriminating based on information obtained during the employment verification process.

What Is Employment Verification?

Employment verification is when an organization looks into the work history of an employee or job candidate during the hiring process. Additionally, banks or lenders use employment verification to confirm an employee’s work history and income stability, and government agencies may conduct employment verification as part of a background check.

The goal of employment verification is to confirm everything that the candidate or employee has shared is accurate. Although similar to a reference check, employment verification attempts to remain objective in its questions and answers.

As an employer, you can find yourself on both sides of the employment verification process. You may either be requested to provide information regarding a previous or current employee. Or you might be the one conducting employment verification.

Employment Verification Laws

Employment verification is heavily regulated by several Federal laws, including:

• The Immigration Reform and Control Act (IRCA). Under IRCA, all employers, along with their employees, must complete and retain Form I-9 Employment Eligibility Verification. This form is used to check whether or not the employee is authorized to work in the U.S. It is enforced by the U.S. Customs and Immigration Services.

  The employee or potential hire provides acceptable documentation that attests to their identity and eligibility. These documents can include:

  • U.S. Passport

  • A Permanent Resident Card or Alien Registration Receipt Card (Form I-551)

  • A state or outlying possession-issued driver’s license

  • A Federal, state, or local government agency ID card

  • A voter registration card

  • Native American Tribal Document

  • A Social Security card

  • A birth certificate

  Some documents, such as a U.S. passport, prove both identity and eligibility, while others, such as a driver’s license, only confirm identity. In these cases, additional paperwork that confirms eligibility to work in the U.S. is required, such as a Social Security Card.

  A complete list of acceptable documentation can be found on the last page of the I-9 Form.

• The Fair Credit Reporting Act (FCRA). As part of the Consumer Credit Protection Act, the FCRA protects information collected by consumer reporting agencies. Only those with a specified purpose that is defined in the act are allowed access to the information found in a consumer report.

  If employers want to access this information, they must obtain written consent from the employee or potential hire. Also, they must notify the person in question when an adverse action is taken due to the report.

• The Health Insurance Portability and Accountability Act (HIPAA). This law is used to protect the health information of an individual. It prevents employers from accessing or sharing any medical records and information during the employment verification process.

• The Americans with Disabilities Act (ADA). It is prohibited by the ADA to discriminate against a qualified individual due to a disability. If an employer learns that their employee or job candidate has a disability, they may be asked to provide reasonable accommodations.

• Title VII of the Civil Rights Act of 1964. This section of the law prohibits employers from discriminating against an employee based on their race, color, religion, sex, and national origin.

  The law states that employers who share information during the employment verification process must be consistent and share the same information with all employees. Claims of discrimination are handled by the Equal Employment Opportunity Commission (EEOC).

States also have different laws regarding employment verification. These come with additional restrictions and regulations. For example, it is illegal to seek salary information during the hiring process in California and New York. Meanwhile, employers in Texas can seek and provide salary information if they use the proper documentation.

It is important to understand how these laws affect employment verification. Failure to do so can result in serious legal repercussions. Make sure your company is compliant with all laws, and consult a qualified legal professional if you have questions.

The Purpose of Employment Verification Laws

Laws related to employment verification are in place to protect all parties involved.

For employees, unchecked employment verification is invasive to their privacy and could provide unfair information that leads to discrimination.

By these same laws, employers are compelled to remain fair and objective. The laws also protect the employer from employees or candidates who lie.

For example, if an employee lied about their eligibility, the employer might be accused of illegal business practices. Or, if an employee lied about past work experience, they might be hired and fail to perform important job responsibilities.

Tips for Employers During Employment Verification

With all the legality surrounding employment verification, it can be a little tricky for employers. As an employer, you need to consider which side of the process you fall on:

• Are you requesting information to verify a current or potential employee?

• Are you being requested for information regarding a current or past employee?

If you are requesting information, consider the following tips:

• Know how much information you can and will seek. You do not want to just call up previous employers and make small talk. Be very clear with what you are asking and keep it consistent. Make sure your questions fall in line with legal regulations.

• Work with your HR Department or a legal consultant. If you are ever unsure what you can and cannot request, you should speak with a qualified individual who knows the specifics of your situation.

• Use an employment verification third party. If you have the budget, you may want to consider outsourcing to a company that specializes in employment verification. They have the resources and experience that allow them to be efficient and effective in their evaluations.

If you are an employer being asked to provide information about a current or past employee, keep the following tips in mind:

• In most cases, you have the right to refuse. Generally, you are not required by law to answer employment verification requests. However, sometimes Federal or state government agencies can require you to provide information if necessary.

• It is good practice to provide information. Providing employment verification information creates smooth business operations and helps you maintain good relations with employees.

• Do not overshare. Only answer the questions you are asked. Oversharing information could put you at risk of violating discrimination or privacy laws.

How to Conduct Employment Verification

To conduct employment verification, you will want to:

1. Provide necessary documentation. Have copies of the Form I-9 ready for new and prospective employees. Make sure that the employee provides acceptable proof of their identification and eligibility to work. You may also want to have some form on file that gives you a brief overview of the verification process and relevant regulations.

2. Obtain written consent. Get a signature from your new or prospective employee so that you can conduct verification legally. This must be signed to protect yourself in the event that an employee later becomes unhappy you spoke with former employers.

3. Obtain former employer contact information. As part of your reference check, you will want to have legitimate contact information, such as email addresses and phone numbers, so that you can request verification. Review the contact information and make sure it seems legitimate.

4. Contact former employers and other references. When you conduct your employment verification, keep your questions fair and consistent so that you do not violate any privacy or discrimination laws. Have your questions prepared ahead of time and write down answers somewhere that it is easy to refer to later.

5. Organize your information. Whatever you obtain, make sure to keep it organized for further review and employment practices. It’s possible you may have some disputes in the future, so having a record of your verification process will provide you necessary evidence.

Again, remember to keep everything you do within the legal requirements. Consult with human resources or legal professionals to clarify what you can ask.

Example Questions to Verify Employment

Remember that the purpose of employment verification is to remain objective. Therefore, questions should seek out facts rather than opinions. Common examples of employment verification questions include:

Employment Verification FAQ

1. What can an employer say in an employment verification?

   An employer can share anything that does not interfere with privacy or discrimination laws. Most employers will verify their employee’s job titles, period of employment, and responsibilities. They may also provide details about job performance and whether the employee resigned or was fired.

2. Are employers required to respond to employment verifications?

   No, for the most part, employers are not required to respond to employment verifications. Only certain Federal and state government agencies can require employers to respond to employment verification requests. This can occur in situations that involve criminal investigations, background checks, and security clearances.

3. What happens if an employer lies about verification of employment?

   If an employer lies about verification of employment, it can result in legal fines and regulations. When an employer answers or conducts an employment verification, they are expected to do so in good faith. Failure to be honest can affect an employee’s eligibility to work.

4. How do third parties verify employment?

   Third parties verify employment by conducting requests on behalf of an organization. They are certified to represent the organization and may be required to provide proof of certification. The third party will collect and organize all the information regarding the employee and have it ready for verification.

References

1. U.S. Congress – Immigration Reform and Control Act of 1986

2. U.S. Citizenship and Immigration Services – I-9, Employment Eligibility Verification

3. Federal Trade Commission – Fair Credit Reporting Act

4. U.S. Equal Employment Opportunity Commission – Title VII of the Civil Rights Act of 1964

5. U.S. Department of Justice – The Americans with Disabilities Act

6. U.S. Department of Health and Human Services – Health Information Privacy

Author

Conor McMahon

Conor McMahon is a writer for Zippia, with previous experience in the nonprofit, customer service, and technical support industries. He has a degree in Music Industry from Northeastern University and in his free time he plays guitar with his friends. Conor enjoys creative writing between his work doing professional content creation and technical documentation.