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Mixed Messages on Independent Contractor and Employee Background Checks

The rise of the independent contractor model has brought to light some significant concerns about liability, negligence, and the type of control and screening companies that operate on an independent contractor must adhere to. For example, in 2017, Massachusetts set its sites on Uber and Lyft. Ride-sharing apps tout lower prices than competing cab companies, in legislation requiring independent contractors to pass strict employee background checks and requiring ridesharing apps to refuse drivers with a criminal history, specifically those with sexual offenses on their records.

The Massachusetts Law aims to protect the public from independent contractors who may pose a risk, insist proponents of the law. The legislation came on the heels of several highly publicized incidents of criminal mischief from contractors for the ridesharing apps. In May 2016, Jason Dalton, an Uber contractor, killed six people in Kalamazoo in a shooting spree. In addition, female passengers have accused several Uber and Lyft drivers of sexual assault and false imprisonment.

The Massachusetts Law does, however, contradict regulations and suggestions set forth by the EEOC. The Fair Chance Law has passed in many cities, including New York and San Francisco. The Fair Chance Law was enacted after the Ban the Box campaign to remove criminal record questions from job applications and limit the number of questions that can be asked about one’s criminal records. In addition, 18 States have adopted ordinances that ban criminal background questions on job applications for government-based jobs and, in some cases, government contractors.

Advocacy groups argue that ex-offenders are not allowed to reintegrate into society by forcing applicants to check a box regarding their criminal record. Some advocates say that by making it difficult to find a job, the ex-offender is more likely to re-offend and perpetuate a cycle of criminal activity.

The state ordinances and suggestions by the EEOC seem to contradict the new Massachusetts law and the subsequent legislation that is likely to follow by other states. Many wonders if contradictory information, such as that included in the Massachusetts Laws and the ordinances about Ban the Box, could potentially open a company up to litigation by unsuccessful job applicants.

The required, state-approved employee background checks contradict the Fair Credit Reporting Act. Under the act, a series of consent forms must be signed before a company can run a background and credit check on potential employees. While many argue that the law does not protect Independent Contractors, class-action suits have been brought against Uber, citing the FRCA.

So, what is a business to do when they are considering employing independent contractors but want to ensure they are adhering to all potential legislation? The best action is to stick to FRCA standards when performing employee background checks. It may be advisable to utilize employee background checks only on employees interacting directly with the public. It is also wise to alter the language on FRCA consent forms to ensure the potential applicant is aware that they are an independent contractor rather than an employee of the company.

While not particularly new, the concept of independent contractors has reached a fever pitch in recent years. As our world expands technologically and globally, more and more companies are looking for innovative ways to hire talent. As millennials join the workforce, they, too, are looking for creative ways to work while maintaining a comfortable and enjoyable life. The rules have to change as our world changes, but our world and our practices aren’t always in sync. When it comes to employee background checks and legislation requiring and condemning them, time will only tell how it will shake out. However, the best suggestion for employers is to follow the state rules and the FRCA closely, both for traditional employees and independent contractors.    

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Cite this article: Lynch, N. (2017). Mixed Messages on Independent Contractor and Employee Background Checks. Available: