The EEOC and the FTC team up to emphasize rules already in existence. Part of the EEOC’s strategic plan is to insure that the use of background checks closely watched and to this effort they have teamed with the Federal Trade Commission, which is responsible for the Fair Credit Reporting Act.
None of what was said in the joint press release is new, but apparently enough employers are violating the law they felt the need to reemphasize the following. The EEOC emphasizes:
- Don’t discriminate! Don’t focus on more on one protected category than another. We should know this by now. Steer clear of medical information as required by the ADA and genetic information as required by GINA.
- Make sure you pay attention to factors that have direct bearing on job performance and not factors related to protected status. The report specifically says “For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
- Be prepared to make exceptions for disabilities if they caused a background check problem. You have to engage in the reasonable accommodation process.
The FTC emphasized following the rules of background checks conducted through third-party providers. These include:
- Telling the applicant you are making an adverse decision;
- Give the a copy of the report you used;
- Let them review the report and then give them a second notice
- After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
- that he or she was 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 he or she has 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.
The also remind us that you must keep all background information a minimum of one year (two years for educational institutions and state and local governments.) Then when you dispose of the information it must be done very securely. This generally means shredding paper and erasing files securely.
Guidance for employees
These two agencies also provided guidance for employees. Basically they tell them that it is acceptable for employers to check backgrounds with the exception of medical or genetic information.
For further information on the proper use of the FCRA see these posts here and here in addition to those listed below.