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Oklahoma Background Check Laws

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Area 69,897 sq mi
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Oklahoma Employment Screening laws

Employers that are either located in Oklahoma or hiring Oklahoma residents must abide by the Federal FCRA, and applicable Oklahoma state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Oklahoma state laws. This page also contains steps an end-user must take to stay in compliance with Oklahoma state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on Oklahoma state laws, please consult your legal counsel.

Background Check Law Ban the Box Law Court Fee Summary of Rights

Employment Background Check Laws In Oklahoma:

Oklahoma Statutes § 40-191: Restrictions on requirement of physical examination - Report not basis of damages.

It shall be unlawful for any person, partnership, association, or corporation, either for himself, herself, or itself, or in a representative or fiduciary capacity, to require any employee or applicant for employment, as a condition of employment or continued employment, to submit to, or take, a physical or medical examination, without providing such examination at no cost therefor to such employee or applicant for employment, or without furnishing, upon the request of the employee or applicant for employment within thirty (30) days after such examination, free of charge, to such employee or applicant for employment, a true and correct copy, either original or duplicate original, of the examiner’s report of such examination. It shall further be unlawful for any such person, partnership, association or corporation to require any employee or applicant for employment to pay, either directly or indirectly, any part of the cost of any such examination, report, or copy of report. Provided that the report of any physical examination furnished in accordance with this section shall not be made the basis or predicate for any action in damages against the physician and surgeon making and furnishing such report.

Ninja's summary

Employers are prohibited from requiring any applicant to pay for, and provide, any of their own pre-employment medical examinations or other records (medical, criminal history, fingerprinting, etc).

Oklahoma Statutes §24-148(A): Request of consumer report – Notice to subject of report.

A. Prior to requesting a consumer report for employment purposes, the requestor or user of the consumer report shall provide written notice to the person who is the subject of the consumer report. The notice shall inform the consumer that a consumer report will be used and the notice shall contain a box that the consumer may check to receive a copy of the consumer report. If the consumer requests a copy of the report, the user of the consumer report shall request that a copy be provided to the consumer when the user of the consumer report requests its copy from the credit reporting agency. The report sent to the consumer shall be provided at no charge to the consumer. As used in this section, “consumer report” shall have the same meaning as that term is defined in the federal Fair Credit Reporting Act, 15 U.S.C., Sections 1681 et seq.

B. No person shall be held liable for any violation of this section if such person shows by a preponderance of the evidence that, at the time of the alleged violation, such person maintained reasonable procedures to assure compliance with this section.

Ninja's summary

An Employer’s authorization and consent forms must contain a “box” or an option for an applicant to ask for a copy of the requested report and must advice the consumer reporting agency of the applicant’s request.

Oklahoma Statutes §22-19(F): Sealing and unsealing of records - Procedure.

A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information.

B. Upon the filing of a petition or entering of a court order, the court shall set a date for a hearing and shall provide thirty (30) days of notice of the hearing to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record.

C. Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.

Any order entered under this subsection shall specify those agencies to which such order shall apply. Any order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court. In all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.

D. Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.

E. Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, or by the district attorney and only to those persons and for such purposes named in such petition.

F. Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.

G. All arrest and criminal records information existing prior to the effective date of this section, except basic identification information, is also subject to sealing in accordance with subsection C of this section.

H. Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records.

I. For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document.

J. For the purposes of this act, district court index reference of sealed material shall be destroyed, removed or obliterated.

K. Any record ordered to be sealed pursuant to Section 1 et seq. of this title, if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period.

L. Subsequent to records being sealed as provided herein, the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, or other interested person or agency may petition the court for an order unsealing said records. Upon filing of a petition the court shall set a date for hearing, which hearing may be closed at the court’s discretion, and shall provide thirty (30) days’ notice to all interested parties. If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed.

M. Nothing herein shall prohibit the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to Section 2608 of Title 12 of the Oklahoma Statutes.

Ninja's summary

Employers are prohibited from inquiring about an applicant’s sealed records. If an applicant has a sealed record, the applicant may state that they have no conviction.

Oklahoma Statutes §40-173.2: Prohibited actions regarding personal social media accounts.

A. No employer, as defined by paragraph 1 of Section 1301 of Title 25 of the Oklahoma Statutes, located in this state shall:

1. Require an employee or prospective employee to disclose a user name and password or other means of authentication for accessing a personal online social media account through an electronic communications device;

2. Require an employee or prospective employee to access the employee’s or prospective employee’s personal online social media account in the presence of the employer in a manner that enables the employer to observe the contents of such accounts if the account’s contents are not available to the general public, except pursuant to an investigation as provided in subsection D of this act;

3. Take retaliatory personnel action that materially and negatively affects the terms and conditions of employment against an employee solely for refusal to give the employer the user name or password to the employee’s personal online social media account; or

4. Refuse to hire a prospective employee solely as a result of the prospective employee’s refusal to give the employer the user name and password to the prospective employee’s personal online social media account.

B. An employer may request or require an employee to disclose any user name and password for accessing:

1. Any computer system, information technology network, or electronic communications device provided or subsidized by the employer; or

2. Any accounts or services provided by the employer or by virtue of the employee’s employment relationship with the employer or that the employee uses for business purposes.

C. If, through the use of an electronic device or program that monitors an employer’s network or the use of employer provided devices, an employer inadvertently receives an employee’s user name and password or other authentication information, the employer is not liable for having such information, but may not use the information to access an employee’s personal online social media account.

D. Nothing in this section shall prevent an employer from:

1. Conducting an investigation:

a.for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on a personal online social media account or personal online social media service by an employee or other source, or

b.of an employee’s actions based on the receipt of specific information about the unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal online social media account or personal online social media service by an employee or other source;

2. Conducting an investigation as specified in subparagraphs a and b of paragraph 1 of this subsection includes requiring the employee’s cooperation to share the content that has been reported in order to make a factual determination.

E. Nothing in this section shall be construed to prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations.

F. Nothing in this section shall be construed to prohibit an employer from accessing its computer system or information technology network, including electronic communications devices owned by the employer. Neither this section nor any other Oklahoma law shall prohibit an employer from reviewing or accessing personal online social media accounts that an employee may choose to use while utilizing an employer’s computer system, information technology network or an employer’s electronic communication device.

G. An employee or prospective employee may bring a civil action against an employer who violates this section in a court located in the county in which the alleged violation occurred. Such action shall be brought within six (6) months after the alleged violation occurred. The employee or prospective employee may seek injunctive relief to restrain the employer from continuing to act in violation of this section, but must show by clear and convincing evidence that the employer violated this act. The only damages recoverable for a violation of this act are Five Hundred Dollars ($500.00) per violation. No punitive or emotional damages are recoverable, and this section may not be utilized for the basis of a public policy tort.

H. As used in this section:

1. “Electronic communications device” means a device that uses electronic signals to create, transmit or receive information, including computers, telephones, personal digital assistants and other similar devices; and

2. “Personal online social media account” means an online account that is used by an employee or prospective employee exclusively for personal communications that an individual establishes and uses through an electronic application, service or platform used to generate or store content, including, but not limited to, videos, still photographs, blogs, video blogs, instant messages, audio recordings or email that is not available to the general public.

Ninja's summary

Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts. Employers may not access an employee’s or an applicant’s personal social media account in a manner that allows the employer to observe contents that are private and shielded from the general public.

Update: Feb 2018

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

No additional “Ban the Box” state or local laws to consider. Please keep in mind that laws are always changing, and we recommend that you seek legal counsel for the most up-to-date legal information.


Update: Feb 2018

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

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Oklahoma Consumers Have the Right to Obtain a Security Freeze

You have a right to place a “security freeze” on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified mail. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with , or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, government services or payments, rental housing, employment, investment, license, cellular phone, utilities, digital signature, Internet credit card transaction, or other services, including an extension of credit at point of sale. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place. To provide that authorization you must contact the consumer reporting agency by one of the methods that it requires, and provide all of the following:

  1. The personal identification number or password;
  2. Proper identification to verify your identity;
  3. The proper information regarding the period of time for which the report shall be available; and
  4. The payment of the appropriate fee.

A consumer reporting agency must authorize the release of your credit report no later than three (3) business days after receiving all of the above items by any method that the consumer reporting agency allows. A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.

You have a right to bring civil action against anyone, including a consumer reporting agency who willfully or negligently fails to comply with any requirement of the Oklahoma Consumer Report Security Freeze Act. A consumer reporting agency has the right to charge you up to Ten Dollars ($10.00) to temporarily lit a freeze on your credit report, and up to ten Dollars ($10.00) to remove a freeze from your credit report. However, you shall not be charged any fee if you are a victim of identity theft who has submitted, at the time the security freeze is requested, a copy of a valid investigative or incident report or complaint with a law enforcement agency about the unlawful use of your identifying information by another person, or if you are sixty-five (65) years of age or older for the initial placement and removal of a security freeze.

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

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