When making personnel decisions—including hiring, retention, promotion, and reassignment—employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the individual’s work history, education, criminal record, financial history, medical history, or use of social media during employee background checks. Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.
1.) AVOID DISCRIMINATION
Any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws to protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
2.) BE COGNIZANT OF APPLICABLE LAWS.
When you run employee background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.
3.) FORMULATE A POLICY.
When deciding on the requirements for the job, prior to even interviewing a candidate, think of what factors would cause you to deny employment. You should outline the risks associated with, and what criminal convictions would be relevant to the job, if any. By deciding on this criteria before beginning the hiring process, you’ll be considering only relevant background information and will reduce potential discrimination.
4.) INVESTIGATE THE ISSUES.
Arrests alone are not reliable evidence that a person has actually committed a crime.To justify the use of arrest records, an additional inquiry must be made. Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility.
OTHER RESTRICTIONS.
Even where there is no direct evidence that an employer used an arrest record in an employment decision, a pre-employment inquiry regarding arrest records may violate federal or local law. It is generally presumed that an employer only asks questions which s/he deems relevant to the employment decision. Numerous states have specifically prohibited pre-employment inquiries through their “Ban The Box” laws, due to the possible misuse of this information.
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.