On March 10, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) issued joint guidance for employers and employees regarding background checks. The EEOC enforces federal employment discrimination laws, while the FTC enforces, among other things, the Fair Credit Reporting Act. The guidance documents, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, present a refresher on prior guidance from each agency. However, the joint effort suggests that each agency may increase its respective enforcement efforts with respect to employer use of background checks.
The employer guidance gives each agency’s tips on each of the following topics:
- “Before You Get Background Information”;
- “Using Background Information”;
- “Disposing of Background Information”; and
- “Further Information”.
With respect to using background check information, the EEOC’s directives to employers focus on consistent application of standards to all applicants or employees. The guidance also cautions employers to “[t]ake special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.”
The FTC’s contribution to the employer guidance focuses on notice obligations to applicants and employees regarding background checks, receipt of written permission from the applicant or employee prior to conducting any background check, and permitting applicants or employees an opportunity to review and explain any negative information in a background report prior to taking any adverse employment action.
Employers can expect the EEOC and FTC to coordinate their efforts in enforcing employer compliance moving forward. Employers should take this opportunity to review their existing background check procedures, particularly their use of an applicant’s or employee’s criminal and/or credit history.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about background checks or labor & employment law, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.