How You Can & Can’t Use a Background Check
While background information can be invaluable when making personnel decisions—such as work history, medical history, education, financial history—employers must understand the laws they must comply with to protect employees and employee candidates from discrimination.
The Equal Employment Opportunity Commission (EEOC) maintains regulations to ensure that discrimination does not occur, and enforces federal employment discrimination laws when it does occur.
Employment decisions may not be made based on a person’s race, color, national origin, sex (including pregnancy), religion, age (40 or older), disability or genetic information, no matter how the information was obtained.
If you hire a business to compile background information for you, such as Victig, you must also comply with the Fair Credit Reporting Act (FCRA), which is enforced by the Federal Trade Commission (FTC).
Before You Run a Background Check You Should…
- When you decide to run background checks on applicants, make sure it is for all applicants. Picking and choosing certain applicants for background checks based on any of the above criteria is basis for a discrimination charge.
- You should not make any personnel decisions based on genetic or family medical history, and save there are extenuating circumstances, you should never request it.
- Unless a conditional job offer has been made, do not ask any questions concerning their medical history. And even if they have already started the job, do not ask medical questions unless there is reasonable concern and evidence that they are unfit to do the job.
- Inform the applicant in writing that you will be running a background check and may influence employment decisions. The notice must be separate from any other notices or documents.
- Get written permission from the individual to run a background check.
How to Correctly Use a Background Report
- Regardless of race, national origin, religion, color, sex (including pregnancy), disability, genetic information (including family medical history), or age (40 or older) employ the same standards. For example, if you don’t discard applicants of one gender with certain criminal histories, you can’t discard applicant of another gender with the same or comparable criminal histories.
- Beware of unconsciously or consciously making employment decisions that could be seen as stereotyping. Avoid making employment decisions based on background issues that may be more prevalent among people of a certain race, color, national origin, sex, or religion; that have a disability; or who are age 40 or older. This practice is called a “disparate impact.”
- If problems are discovered in a background check that exist because of a disability, be prepared to make exceptions and let the applicant demonstrate their ability to do the job.
- If you do use information from the background check to refuse employment, you must provide them with a copy of the report and a document titled A Summary of Your Rights Under the Fair Credit Reporting Act before taking any such action.
- After you take action, you must supply the applicant with the following:
– The applicant was refused employment/promotion because of information in the report
-The name and contact information for the company that sold the report
-Confirmation that the company who supplied the report didn’t make the hiring decision can’t give you any reason for it
-The applicant has the right to dispute the accuracy of the report and to get an additional free report from the company in question within 60 days
Discarding of Records
Any and all records used during a hiring process must be kept for one year after personnel action was taken, or after the records were made, whichever comes first. In the event that an employee or applicant files a charge of discrimination, you must keep the records until the case is closed.
Once you do get rid of records, you must do so in a secure fashion, such as burning or shredding the records and deleting all electronic files so that they can’t be reconstructed.
To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820.
To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261.