Background checks can include information on an individual’s work history, education, criminal record, financial history, medical history, driving record, or use of social media. It probably goes without saying that if the employer is going to do background checks that it needs to do so uniformly and on everyone, not just certain people. Background checks come within the purview of the EEOC (anti-discrimination) as well as the FTC (enforcement of the Fair Credit Reporting Act).
If the background check will be done through a company that performs background reports, the FCRA requires that the employer notify the individual that the background information may be used in making the decision to offer employment. This notice must be in a separate document, and not as part of an application (on paper or website). Job applicants must give written permission for the background check to be performed.
Once the background information is obtained, the employer must be sure not to discriminate. For example, the employer may not reject applicants of one ethnicity with certain financial histories or criminal records, if it does not reject all applicants with the same or similar financial histories or criminal records. Clients should be cautioned to avoid making hiring decisions based on background problems that may be more common among people of a certain race, color, national origin, sex, etc., among people who have a disability, or among people age 40+.
If an employer is going to reject an applicant based on a disability, it needs to give the individual the opportunity to show that they can do the job. Similarly, before rejecting other applicants because of their background checks, the employer must give the applicant a notice that includes the report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” This notice must also inform the rejected applicant:
- that they were rejected because of information in the report;
- the name, address, and phone number of the company that sold the report;
- that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
- that they have a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
Some additional and more specific sources that are provided by the EEOC and FTC are:
- Preemployment medical inquiries: see Preemployment Disability-Related Questions and Medical Examinations.
- Medical inquiries during employment: see Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)
- Genetic inquiries, including inquiries about family medical history: see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008.
- EEOC recordkeeping requirements: see Summary of Selected Recordkeeping Obligations in 29 C.F.R. Part 1602
- Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.
- Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance.
- Background on the EEOC for small businesses: see Get the Facts Series: Small Business Information.
- Using Consumer Reports: What Employers Need to Know
- The Fair Credit Reporting Act & social media: What businesses should know
- Background screening reports and the FCRA: Just saying you’re not a consumer reporting agency isn’t enough
- Reentry Myth Buster: Criminal Histories and Employment Background Checks