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EEOC and FTC Publish Joint Technical Assistance Documents Discussing the Use of Background Checks in Employment Situations

Published by on March 21, 2014

For the first time, the EEOC and the FTC have released a jointly authored technical assistance manual discussing the law surrounding background checks in employment decisions.  The agencies produced two documents, one for the employers and one for employees, providing guidance on how to properly conduct background checks on job applicants and current employees. The agencies […]

For the first time, the EEOC and the FTC have released a jointly authored technical assistance manual discussing the law surrounding background checks in employment decisions.  The agencies produced two documents, one for the employers and one for employees, providing guidance on how to properly conduct background checks on job applicants and current employees.

The agencies caution employers on how they use information gleaned from background checks of potential employees.  Employers may base their employment decisions on information gathered through background checks, so long as they do not use the information to discriminate based on race, color, national origin, sex, religion, age (40 or older), disability, or genetic information, including family medical history.  Employers should consider the applicant pool as a whole and make sure that any of the aforementioned characteristics are not being used to reject applicants or current employees.  Additionally, employers must adhere to the requirements of the Fair Credit Reporting Act if they use third-party background investigation institutions in the process.  Employers must acquire the individual’s written permission before conducting a background check and must provide the individual with a copy of all reports it receives.

With respect to employees, the agencies remind employees that their employer is permitted to request confidential financial information and criminal histories as part of a pre-employment background check.  The agencies ask employees to remain cognizant of how the employer is conducting the hiring process and the background investigation process.  Regardless of the questions asked or information requested, the employer is required to treat all applicants equally.  The technical manual also states that employees can and should ensure that the information in any reports are accurate and contact the company who produced the report to correct any errors.

Laconic Lesson:  Federal agencies are now partnering to ensure that both employers and employees know the correct way to conduct and use background checks in employment situations.  Employers can request personal, financial and criminal information as part of a background check.  This information can be used as part of the employment decision, provided it is not used in a discriminatory manner to exclude individuals based on protected characteristics.

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