What Employers Need to Know About Conducting Background Checks – Part 2

Employer and Candidate Rights

An employer has every right to require that their candidates undergo a background check, to ask direct questions about their qualifications in the interview process, and to make hiring decisions based on the information that they find. But they must do so while complying with certain federal, state, and municipal laws that are designed to protect applicants and current employees from discrimination.

These nondiscrimination laws are enforced by the Equal Employment Opportunity Commission (EEOC) while the rights of anyone subjected to a third-party background check
(including prospective employees) are protected by the Fair Credit Reporting Act (FCRA).

Before Conducting a Background Check

Here’s what you need to know about complying with the EEOC and FCRA before you even begin the process of conducting a background check:

The EEOC

In the investigative period of the hiring process, you are free to delve into the individual’s work and education history, criminal record, financial history, and even their social media presence
and habits. A standard employee background check covers all of these areas, but the EEOC mandates that if you are going to conduct a background check on any applicant, you must do so
on every applicant.

Just as it is illegal under EEOC guidelines to make adverse hiring decisions based on an individual’s status within a protected class, it is illegal to only conduct background checks based
on the same information: a person’s race, age, national origin, color, sex, religion, disability, or genetic information (including family medical history).

A few tips to protect yourself from accusations of discrimination at this stage, as outlined by the EEOC, are:

1. Have uniform policies in place that treat every candidate equally in the hiring process.

2. Don’t seek out or ask questions about a candidate’s genetic information. This information is further protected under the Genetic Information Nondiscrimination Act (GINA).

3. Refrain from asking questions about a candidate’s medical history before making a conditional job offer, and even post-hire, unless there is objective evidence that the individual cannot safely perform their job for medical reasons.

The FCRA

The Fair Credit and Reporting Act is enforced by the Federal Trade Commission (FTC), and outlines specific procedures and protocols that must be followed when working with a credit reporting agency (CRA), which is a third-party company in the business of collecting background information. Most, if not all, employers will work with a third-party company to conduct a comprehensive background check on their candidates.

Before you even begin the process of conducting a check, the FCRA requires that you to do following:

1. Make clear to the applicant that the results of the background check may be used to inform your decision to hire them. The notice must be in writing and provided in a document separate from an application for employment. You can include additional information on the notice, but you don’t want to confuse or detract from the core purpose of the notice.

2. If the background check will include an “investigative report,” you must notify the applicant of their right to a clear description of the scope and nature of the investigation and then provide such a description. An investigative report is a more subjective exploration of a candidate’s character, reputation, personal traits, and lifestyle.

3. Procure the applicant’s written permission to conduct the background check. This request for permission can be included in the notice described in item 1, which informs the applicant about the background check. If you want to establish an ongoing understanding that a background check may be requested at any time during the person’s employment with your company, you must make sure it’s explicitly stated in the notice.

4. If you are working with a third-party background screening company or CRA, you must certify with them that you: 1) have gotten permission from the applicant to run the report, 2) have made sure you’re in compliance with FCRA requirements, and 3)will not misuse the information or discriminate against the individual.