Criminal Background Checks: What Employers Need to Know
Do you conduct background checks on job applicants or your employees? Take note! In a new joint publication, "Background Checks: What Employers Need to Know," the Equal Employment Opportunity Commission ("EEOC") and the Federal Trade Commission ("FTC") provide useful tips on complying with federal discrimination laws and the Fair Credit Reporting Act (FCRA). The publication reminds employers of the "do's and don't's" to comply with the FCRA procedures when running a background check:
Before you Administer a Background Check
- Do: Treat everyone equally. Don't check the background of applicants and employees when that decision is based on an applicant's race, national origin, color, sex, religion, disability, genetic information, or age.
- Don't: Ask any medical questions before a conditional job offer has been made. If the person has already started the job, do not ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.
Procedures for Background Checks from Credit Reporting Agencies:
- Do: Get the applicant's or employee's written permission before performing a background check.
- Do: Notify the applicant or employee that you may use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format.
- Do: Tell the applicant or employee of his or her right to a description of the nature and scope of the investigation (if you are asking a company to provide an investigative report--a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle).
Follow Procedure If You Plan to Use a Background Check to Take an Adverse Action Before not hiring an applicant or firing an employee based on background information obtained through a credit reporting agency:
- Do: Provide a notice that includes a copy of the consumer report you relied on to make your decision; and
- Do: Provide a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act."
- Don't: take action without waiting a reasonable time after the applicant/employee has received the notice and summary.
After providing the notice and summary, wait a reasonable amount of time for the person to review the report and explain any negative information. A reasonable amount of time depends on the circumstances. Five to seven business days is generally acceptable. A complete copy of this joint publication can be found on the EEOC's website here.
Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.