Employers routinely use background checks when hiring new employees, without considering the consequences of using them on every applicant. The EEOC’s current standing policy provides that criminal background checks should be limited to only those positions where such information is “job-related and of business necessity,” and should only seek information about convictions, not arrests.
The Fair Credit Reporting Act, in addition to providing rules regarding credit checks, imposes a number of requirements on employers seeking to obtain a criminal background check. Before obtaining a criminal background check, an employer must disclose in writing to an individual that the report may include in-depth information about his or her character, general reputation, personal characteristics, mode of living, criminal, driving and work history. The disclosure must be delivered no later than three days after the report was first requested and include a statement informing the individual of their right to request additional disclosures and receive a written summary of legal rights. If an individual requests additional information about the investigation, the employer must mail or otherwise provide the information within five days of receipt of the written request, or the request date of the report, whichever is later. Employers must take “reasonable measures” to protect against unauthorized access to or use of information in connection with the disposal of consumer information.
In order to prevent legal trouble, employers can take a few easy steps. Employers should have a clear reason for requiring a criminal background check, relating to the open position. For example, a position where the applicant will have access to the employer’s or customer’s money could require a background check to ensure that the applicant does not have any fraud convictions. In addition, employers should discuss the information they are allowed to consider with legal counsel, and then limit the background check to that information, so that no improper information is included in the background check, which ensures that there is no chance that improper information would be considered during the hiring process. Finally, blanket policies, where every applicant is given a background check, should be avoided. A discussion with legal counsel can provide specific guidance on when criminal background checks are appropriate, and what information can be sought.