According to the Bureau of Labor Statistics, almost 28.8%
of young adults, 16-19 years of age, were employed in December 2014.1 In
addition, The Bureau of Justice Statistics reported that there were
approximately 1.3 million juvenile arrests in 2012 (39% involving youth younger
than age 15).2 For these reasons, employers may have justification for
developing and implementing a background screening program for minors.
There are a number of factors to consider when conducting
background checks on minors seeking employment. As with all background screens
for applicants or employees, the Fair Credit Reporting Act (FCRA) requires consent
in conjunction with pre-employment screening for minors as well. Careful
understanding of the nature of a minor’s consent is necessary for employers to
be protected.
Though there are several legal definitions of a minor,
depending whether you’re dealing with state or federal law, the most commonly
accepted definition refers to anyone who has not reached the full age to vote,
buy alcoholic beverages, or join the military. Under the age of 18 (lower in
some states), minors are unable to enter legally binding agreements, with few
exceptions.3 Exactly when someone is a minor depends on the issue at hand, but
in general, we’re talking about candidates who have not reached their 18th
birthday.
Child labor is regulated by the federal Fair Labor
Standards Act (FLSA) and state labor laws. Child labor provisions are designed
to protect minors by restricting the types of jobs and the number of hours they
may work.4 Employers should verify the age of all minors in their employ by
procuring an age certificate issued by the Wage and Hour division of the
Department of Labor, in order to comply with federal law. Some states may also
require either the employer or the minor to obtain a work permit, signed by a
parent, through the state's Department of Labor.
Since minors are not expected to have the maturity
necessary to fully understand the terms and obligations of a legal agreement or
contract, even when they sign a release for pre-employment screening, it will
not likely be binding. This can leave employers at risk.
Though work permits may exist with consent from a parent,
parents must also authorize and consent to a background screen of their minor
child. In order to comply with legal mandate, employers wishing to run a
background check on a minor should require and obtain parental or legal
guardian consent. When the minor is not able to provide parental consent,
employers should consult with their attorney for a recommended practice.
Employers should recognize that not all records requested
as part of an organization’s screening program will be available on minors. The
majority of criminal records for minors are sealed or expunged, making them
unattainable. In limited situations when a minor was convicted as an adult,
there may be information, but use must be consistent with other individual
assessment practices. Minors are generally unable to obtain credit until age
18, making credit history unlikely to exist.
Best Practices
- As with adult applicants and employees, minors are afforded the same rights under Title VII, including the provision that all pre-employment and post-hire screenings should demonstrate job-relatedness and be part of a uniformly applied practice to those jobs demonstrating such requirements.
- Motor vehicle records, employment verifications, education verifications and personal references can provide a good indication of a candidate’s experience and background.
- When using pre-employment screening information to hire a minor, employers may need to adjust policies and practices in terms of what information they will have available to use.
- A parental consent form should include the name of the minor, the company name, location, job title, and a statement regarding the background screening process. In addition, the parent must sign a statement that provides the relationship to the minor and date, confirming they understand the purpose of the pre-employment check and giving specific consent for it to occur.
“This is one of the top five questions we receive from
our clients. How and when do you screen minors,” said Laura Randazzo, VP of
Compliance for Aurico Reports, Inc. “Employers should always seek legal counsel
to draft a screening policy that best protects the employer when hiring
minors.”
1 http://www.bls.gov/news.release/empsit.nr0.htm
2 http://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm
3 http://www.fair-debt-collection.com/searches/minor-definition.html
4 http://smallbusiness.findlaw.com/employment-law-and-human-resources/hiring-minors-for-your-business.html#sthash.B3Ux5UWD.dpuf
5 http://www.shrm.org/templatestools/hrqa/pages/arethereanyrestrictionswhenperformingbackgroundchecksordrugtestsonminors.aspx#sthash.lQKpbsAM.dpuf
