The Equal Employment Opportunity Commission and the Federal Trade Commission have launched a joint guidance on employee background checks, based on antidiscrimination laws and the Fair Credit Reporting Act, according to Lindsay Burke and Brian Fitzpatrick at Covington & Burling. The documents are published for two intended audiences: employers and employment applicants and “aims to provide high-level practical assistance and answers to commonly asked questions that arise during the application process,” the lawyers say.
The guidance reminds employers they can’t be selective about background checks and must apply the same standards to all prospective employees. “If a certain type of background check disproportionately impacts members of a protected group, it must be job-related and consistent with business necessity,” the authors explain. However, they note the guidance does not outline how employers know when these warnings are applicable.
To be in compliance with the FCRA, employers must notify applicants that an outside background report may be used in the employment decision, and they have the right to a description of the investigation, explain Burke and Fitzpatrick. The employee also should receive a copy of the report before any adverse action is taken. Employers need written permission to perform these types of checks, along with certifications from the company conducting it.