by Deanna Arnold
Recently, the Equal Employment Opportunity Commission (EEOC) and the
U.S. Federal Trade Commission (FTC) joined forces to publish guideline
documents to continue to educate employers regarding background checks
and the applicable laws and regulations surrounding them. The
information provided isn’t anything new but it serves as a good reminder
for employers that currently are conducting background checks for
employment purposes or those employers who may plan to start doing so.
Here are some of the highlights:
- Treat everyone equally – Do not check an applicant or employees’
background based on their race, national origin, color, sex, religion,
disability, genetic information or age. It is an illegal practice.
- Follow the required procedures of the Fair Credit Reporting Act
(FCRA) – The FCRA doesn’t apply to just credit/financial checks as
indicated in the name. It applies to criminal history, character,
general reputation, etc. Therefore, the procedures of the FCRA must be
followed when conducting employment background checks. These include
notifying the candidate/employee in a stand-alone document that the
information from the background check may be used in the employment
decision, notifying the candidate/employee of their rights under the
FCRA as well as getting signed authorization from the
applicant/candidate to conduct the background check. It’s important to
note that the notice(s) must be separate from the application and cannot
be in the application itself.
- Do not discriminate – When the background check results are
available, use the same standards for everyone regardless of any of the
factors noted above and be careful to not base employment decisions on
issues within the background results that may be more common among
people of a certain class (race, sex, age, etc. as noted above).
- Follow the FCRA requirements when taking an adverse action – When
employers take adverse action (decide to not hire an applicant based on
the results of the background check), they must complete a pre-adverse
action notice and notify the person in advance with the required
documents to allow them the opportunity to review the report and provide
any explanation. After that process is completed, the adverse action
notice must be processed in accordance with the requirements of the
- Retain the information for a 1 year period – Whether the applicant
was hired or not, the records associated with the applicant must be
retained for a minimum of 1 year (2 years for certain employers). After
the record retention requirement has been met, the documents can be
disposed of but must be done so securely.
Running background checks on employees isn’t something companies
should take lightly as there are a lot of regulations around it that
employers must be aware of beyond the guidelines noted here. Although
the document published by these two federal agencies provide a wealth of
information about nondiscrimination laws and compliance with the Fair
Credit Reporting Act (FCRA), there are also many state and municipality
laws that employers must also consider when conducting employment
background checks that fall along the lines of what employers can and
cannot ask for as well as the use of the information received.
It is important for companies to have a solid written policy
regarding background checks and that policy is followed consistently
within the guidelines and regulations of federal and state law.
For more specific information about what is applicable to your company, call me with any questions or follow this link directly to the EEOC website to read the published guidelines.
Deanna Arnold, PHR, is the president and owner of Cornelius, N.C.-based
Employers Advantage LLC, which provides practical and sound solutions to
meet the needs of your business in all aspects of human resources,
including but not limited to, recruiting, benefits, employee relations,
compliance, performance management, HRIS, workers compensation, safety,
facilities/office management, and budgeting. She can be reached by
emailing [email protected] or calling 980-422-7953. www.employersadvantagellc.com
Article courtesy of TIRE REVIEW.