In the background check business, just like protecting against the Summer sun, there’s no sunscreen with a high enough SPF to completely protect against the potential perils of hiring teenagers.
And with Summer hiring season beginning to heat up, more businesses are asking about the process, and even the validity, of conducting a background check or drug screening on a minor.
Unfortunately, the answers to such questions can be a bit complicated.
As is usually the case, it is always a good idea to start with the basics in an effort to develop a best practice for your company. At SELECTiON.COM® we ALWAYS recommend that you consult legal counsel before creating any policy. That is especially true when said policy relates to age, gender, race, etc.
By definition, as of 1995 most states classify a minor as someone under the age of 18. Although legally, as it relates to alcohol or gambling, people under the age of 21 may also be referred to as minors.
However, in terms of criminal responsibility, not all minors are considered juveniles and as you might imagine those laws vary widely by state.
Typically, someone considered a juvenile is usually tried in juvenile court. For some crimes, especially those of a more violent variety, the age at which a minor may be tried as an adult is relatively undefined when the accused is below the age of 18. For example, in Kentucky, the lowest age a juvenile may be tried as an adult, no matter how egregious the crime, is 14.
What does all of that mean to you when you’re just trying to hire a couple teenagers for Summer employment?
Well to put it into perspective, an estimated 250,000 youth are tried, sentenced, or incarcerated as adults every year across the United States. That’s well less than 1% of the total population.
When you consider that most offenses committed by minors, tried and charged in juvenile court, are not going to be reported by a criminal court in the first place you realize that running a criminal background check on a teenage applicant is probably not going to return much. For example, the majority of criminal records for minors are sealed, making them unattainable. Unless, of course, they are in that .078% of the population tried and convicted as an adult.
It is important to remember that the Equal Employment Opportunity Commission (EEOC) mandates that the process for all applicants must be consistent and two applicants applying for the same job should have the same searches and investigations run on them. If you routinely hire staff above the age of 18 for a specific job (and title) with certain background checks being required, the EEOC requires the same process to be followed when the applicant is under the age of 18.
Always make sure you keep your process uniform to avoid charges of discrimination.
Questions also arise when asking an underage applicant to sign the background check consent form.
Third-party background checks for minors fall under the Fair Credit Reporting Act (FCRA), just as they would for any other applicant or employee, making it very important that all employers fully understand consent specifically as it relates to a minor.
Legally, minors lack the capacity to make a contract. Yes, a minor can legally enter into a contract, but they also legally have the right to either honor the deal or void it altogether. Unfortunately, the employer doesn’t have the same latitude.
The Society for Human Resource Management suggests that employers wishing to run pre-employment screenings on minors, and be protected during the process, should require parental or legal guardian consent. In cases when the minor is unable to provide parental consent, employers should consult with their attorney for a recommended practice.
Even when parental consent is obtained, however, not all records an employer usually requests will be available on minors. Criminal records, as mentioned above, and credit – given that most individuals under the age of 18 have limited access to establishing credit – are least likely to be obtainable. Past employment and educational records should be available. In most instances, personal references can also be obtained.
Therefore, when using pre-employment screening information in the hiring of minors, your company may need to adjust its policies and practices in terms of what information is available to use.
As always, SELECTiON.COM® strongly recommends that our clients seek legal counsel to draft a screening policy that best protects the employer when hiring any applicant, not just minors.
Gaines, Larry K and Roger Leroy Miller. “Criminal Justice in Action” 4th ed., Thompson Wadsworth Publishing, 2007. Pg 495
Campaign for Youth Justice, Key Facts: Youth in the Justice System. Washington, D.C.: Campaign for Youth Justice, 2007. Web. May 2011. Citing Woolard, J. “Juveniles within Adult Correctional Settings: Legal Pathways and Developmental Considerations.” International Journal of Forensic Mental Health 4.1 (2005)
Equal Employment Opportunity Commission. http://www.eeoc.gov/.
The Society for Human Resource Management. http://www.shrm.org/.