News & Insights

Background Checks: Proceed With Caution
April 17, 2014
by Robert Conte

 

South Bend / Mishawaka, IN – In the ever changing world of Human Resources, some things never change. This statement holds true in the context of employment recruiting.

In this area, it has been a common practice for employers to conduct reference checks and background screening of job applicants and employees. Employers do this for a variety of legitimate business reasons, such as to reduce theft and embezzlement, to avoid the risks related to workplace violence (a real threat), to reduce turnover and attendance problems, and to verify the accuracy of information on an individual’s application and/or resume. Now enter into the picture the Equal Employment Opportunity Commission and the Federal Trade Commission, two powerful agencies who joined together to co-publish a new guidance on employee background checks.

The guidance is in the form of two documents, “Background Checks: What Employers Need to Know” and “Background Checks: What Job Applicants and Employees Need to Know”. In this guidance, each agency expresses its principal concern, the EEOC, about preventing unlawful discrimination and the FTC, about enforcing the Fair Credit Reporting Act.

(The guidance is available in its entirety at either www.eeoc.gov or under “Press Releases” on the FTC homepage, www.ftc.gov)

The central theme of the guidance is the same, employers still have broad discretion to conduct background checks, but employer beware, there are significant protections put into place for job applicants and employees. Equally important are the restrictions on an employer’s efforts to obtain and use the individual background information that is obtained. There are also opportunities available to job applicants and employees to correct their records in advance of any adverse action considered or taken by the employer.

Here are some key points from the guidance:

  • An employer can ask questions about an applicant’s or employee’s background but be aware of restrictions related to medical and genetic information;
  • Stay in compliance with and adhere to the laws prohibiting discrimination based on protected categories;
  • Background reports from an outside agency must comply with the requirements of the FCRA;
  • Obtain the same background information from all individuals, avoid selectivity;
  • Do not request genetic information which includes family history. If you get it, do not use it in your employment decisions;
  • Do not ask any medical questions before making a conditional job offer; only ask current employees medical questions if there is objective evidence that an employee is unable to do the job or proves a safety risk because of a medical condition;
  • Preserve your records for at least one year after the record was made, or a personnel action was taken, whichever is later.

Review the EEOC and FTC guidance, develop sound policies and practices and apply them consistently in your organization.

This memo is for general guidance only and is not intended as legal advice or recommendations for specific fact situations. If questions arise in your workplace involving background checks, a telephone call to an experienced employment lawyer is recommended.

 

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