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On the Law: Criminal background checks a legal minefield
October 28, 2015 posted by Steve Brownstein
Employers often ask me questions about conducting credit and criminal background checks on prospective employees. I surprise them by describing the number of state and federal laws that regulate how an employer may obtain and use these types of background checks.
Private investigators and other businesses often advertise that they will conduct background checks for employers. However, an employer must conduct the appropriate “background” check on these businesses because of the liability on them should the hired entity fail to conduct themselves according to these laws. This article will discuss some of the federal laws applicable to an employer conducting pre-employment background checks.
Employers must comply with discrimination laws that protect applicants and employees from discrimination or retaliation based on age, gender, race, national origin, sex, religion or any of the other protected statuses, and they may not create different hiring criteria based on an applicant’s protected status. For example, an employer may not reject an applicant of one ethnicity with a criminal history, and then continue to consider applicants of other ethnicities with similar criminal histories.
Another federal law governing an employers’ use of credit and criminal background checks is the Fair Credit Reporting Act. This law is enforced by the Federal Trade Commission, and mandates certain steps that employers must follow before they conduct pre-employment background checks, including:
-- Provide an applicant with written notice that the background check may be used as part of the employer’s hiring decision.
-- Provide the applicant with a description of the nature and scope of the background investigation.
-- Obtain the applicant’s written authorization to conduct the background check.
-- Certify to any third party hired to conduct the background check that the employer has obtained the applicant’s signed consent, provided written notice, affirmatively complied with the FCRA’s requirements, and promise not to discriminate, misuse the information or violate any state or federal laws.
After an employer obtains a background report, the federal act also dictates the steps an employer must take before and after rendering any adverse action against an applicant based on the information in the background report.
