Federal and state laws regarding the proper use of background checks1 are strict. While looking into a candidate’s background is typically legal, how the information is used in regards to hiring decisions must follow applicable laws designed to protect applicants from discrimination and compliance with the Fair Credit Reporting Act (FCRA) is mandatory. Additionally, legislation regarding Ban the Box2 has also been passed in numerous jurisdictions, removing a question that was once standard on job applications across the country.
To help you navigate the complex world related to legal background checks, here are some key points regarding the laws and regulations governing the activity.
Equal Employment Opportunity Commission
Many federal laws regarding discrimination in hiring are enforced by the Equal Employment Opportunity Commission3 (EEOC). These rules are designed to prevent employers from discriminating against employees on the basis of race, color, national origin, sex, religion, disability, genetic information, or age (for applicants 40 or older) regardless of how the information is obtained. This means that, if you discover information regarding any of the classifications above during a background check, the data cannot be used as a basis for a hiring decision.
Additionally, the laws associated with the EEOC also restrict other screening activities that are influenced by the factors listed above. For example, only asking candidates of a particular race about prior convictions is discriminatory behavior that is explicitly prohibited.
FCRA Requirements
FCRA requirements are enforced by the Federal Trade Commission (FTC). These policies govern additional procedures that must take place before background information is obtained from any business that compiles background information.
First, all candidates must be informed in writing, in a stand-alone format, if the information obtained in a background check might be used in the hiring decision. Second, if an investigative report is being requested from a company, candidates must be informed of their right to obtain a description of the nature and scope of the investigation taking place. Third, candidates must provide written consent to a background check before it is run. Finally, the company that is running the background check must receive confirmation from you that all of the proper steps were completed and that the information will not be misused based on applicable state or federal law.
Ban the Box
States, cities, or municipalities that have policies associated with Ban the Box require private employers to remove any questions regarding prior convictions from their application materials. The intent of the policies is to prevent employers from making hiring decisions based solely on the conviction box being checked without consideration to the applicant’s other qualifications or the context of the conviction.
The State of Georgia adopted policies related to the Ban the Box movement in 2015, requiring any questions regarding prior convictions to be removed from initial application materials. The law does not yet pertain to private companies.
Failure to comply with any of the laws, regulations, or policies above can lead to legal action being taken against the company running the background check, making it critical that your business understands the applicable rules prior to running a background check on any candidate.
Work With a Leader in Staffing Solutions in Atlanta
Employ Partners offers background check services to our client businesses and adheres to all rules and regulations regarding their production and use. If you are looking for a partner when screening candidates or would like assistance with your hiring process, contact us to discuss how our services as a leader in staffing solutions in Atlanta can work for you.
2 – http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/
3 – https://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm
Leave a Reply