By: Frank Hupfl
The Equal Employment Opportunity Commission ("EEOC") and US Federal Trade Commission ("FTC") recently co-authored two publications on the use of background checks in both the workplace and during the hiring process. The first publication is titled "Background Checks: What Job Applicants and Employees Should Know" and is directed at job applicants and employees. The second, titled "Background Checks: What Employers Need to Know" is directed at employers. In both publications, the agencies highlight and explain the rights and responsibilities of the respective parties in the use of background checks in employment decisions.
The publications reiterate the basic tenet that it is illegal for employers to use background checks in a discriminatory manner based on membership in a protected class. The publications further state that, except in rare circumstances, an employer's best practice is to not request an employee's genetic information, including family medical history. Further, employers should not ask medical questions before a conditional job offer is made and such questions should be made only after an individual has begun working and the employer has objective evidence that the employee is unable to do the job or poses a safety risk because of a medical condition.
The joint publications also contain guidance on the Fair Credit Reporting Act ("FCRA"). Under the FCRA, employers must notify applicants and employees that they might use the information obtained from a background check in making an employment decision. The notice must be in writing and in a stand-alone format. In the event an employer decides to take an adverse employment action based on a report obtained through a consumer background reporting company, the FCRA requires that the employer provide notice to the employee or applicant that includes a copy of the consumer report relied upon. The employer must also provide a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act" to the employee or applicant prior to the adverse action. After taking the adverse action, the employer must:
• inform the applicant or employee that he or she has been rejected because of the information;
• provide the name, address, and phone number of the company that sold the report;
• inform the applicant or employee that the company selling the report did not make the hiring decision, and cannot give specific reasons for it; and
• inform the employee or applicant that he or she has the right to dispute the accuracy or completeness of the report and get an additional free report from the reporting company within 60 days.
The joint publications should highlight to employers that the EEOC and FTC are making the proper use of background checks a principal target of enforcement. Employers that utilize background checks for employees and for applicants in the hiring process should carefully scrutinize their existing policies to ensure compliance under both Title VII and the FCRA.