Mixed Messages on Independent Contractor and Employee Background Checks

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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. In 2017, Massachusetts set their sites on Uber and Lyft, ride-sharing apps that tout lower prices than competing cab companies, in legislation that requires independent contractors to pass strict employee background checks, and requires the ride sharing apps to refuse drivers with a criminal history, specifically those with sexual offenses on their records.

The Massachusetts law is aimed at keeping the public safe 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 of 2016 Jason Dalton, an Uber contractor, killed six people in Kalamazoo in a shooting spree. Several Uber and Lyft drivers have been accused of sexual assault and false imprisonment by female passengers.

The Massachusetts Law does, however, pose a contradiction to regulation and suggestions set forth by the EEOC. In many cities, including New York and San Francisco, the Fair Chance Law, has passed. The Fair Chance Law was enacted after the Ban the Box campaign. The Ban the Box campaign aimed at removing criminal record questions from job applications, and limiting the number of questions that can be asked about one’s criminal records. 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 by forcing applicants to check a box regarding their criminal record, ex-offenders are not being given a fair chance to reintegrate into society. By making it difficult to find a job, some advocates argue, 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 be in direct contradiction to the new Massachusetts law, and the subsequent legislation that is likely to follow by other states. Many are wondering if contradictory information, such as that included in the Massachusetts Laws and the ordinances pertaining to Ban the Box, could potentially open a company up to litigation by unsuccessful job applicants.

The required, state-approved employee background checks also seem to be in contradiction with the Fair Credit Reporting Act. Under the act, there are a series of consent forms that must be signed before a company can run a background and credit check on potential employees. While many argue that Independent Contractors are not protected by the law, 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 course of action is to adhere to FRCA standards when performing employee background checks. It may be advisable to utilize employee background checks only on employees who will be 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.

The concept of independent contractors, while not particularly new, 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. As our world changes, the rules have to change too, but our world and our rules aren’t always in sync. When it comes to employee background checks, and legislation both requiring it and condemning it, time will only tell how it will shake out. The best suggestion for employers, however, is to follow the state rules, and the FRCA closely, both for traditional employees and for independent contractors.    

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Cite this article: Lynch, N. (2017). Mixed Messages on Independent Contractor and Employee Background Checks. Available: https://www.lynchlf.com/blog/mixed-messages-on-independent-contractor-and-employee-background-checks/


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