If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded. Once you've satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports - and any information gathered from them - securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can't be read or reconstructed. For more information, see "Disposing of Consumer Report Information?
To find out more about federal antidiscrimination laws, visit www. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex including pregnancy , national origin, age 40 or older , disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on:. To find out more about federal laws relating to background reports, visit www.
For specific information on employment background reports, see:. The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law. Skip top navigation Skip to content. Background Checks What Employers Need to Know A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission When making personnel decisions - including hiring, retention, promotion, and reassignment - employers sometimes want to consider the backgrounds of applicants and employees.
FTC If you get background information for example, a credit or criminal background report from a company in the business of compiling background information , there are additional procedures the FCRA requires beforehand: Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can't be in an employment application.
You can include some minor additional information in the notice like a brief description of the nature of consumer reports , but only if it doesn't confuse or detract from the notice.
Illegal Background Checks
If you are asking a company to provide an "investigative report" - a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle - you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation. Get the applicant's or employee's written permission to do the background check.
This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly and conspicuously. Certify to the company from which you are getting the report that you: notified the applicant and got their permission to get a background report; complied with all of the FCRA requirements; and won't discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.
Using Background Information EEOC Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should: Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information including family medical history , or age 40 or older. For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
Take 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. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.
In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity.
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Some industries have exemptions, such as the trucking industry. The FCRA also requires that employers inform workers if the information in their credit file is being used against them. If a business refuses to offer employment based on a credit report, it must give that reason explicitly, along with the name, phone number and address of the credit reporting bureau that provided the information.
What Types of Background Checks are There?
This allows applicants to correct potential misinformation before a final hiring decision is made. In some industries, such as manufacturing or nuclear energy, drug testing is a legally required safety measure. Most government jobs require drug testing. Some states limit drug testing to industries where it is required by law, while others require businesses to prove that drug use is a legitimate safety concern that therefore requires employee testing.
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To be valid in court, drug testing policies must be written down, accessible to employees and applied equally and consistently to all current or potential workers. Potential employees can refuse a drug test as part of a background check. In some states, however, they can be denied employment for that refusal.
Current employees can also refuse drug tests, but they can be fired for that refusal if testing requirements are spelled out in the employer's written policies. In most states, asking an employee about their current or former union status is not a violation of the law. But, warned Meyer, it is almost always inappropriate, and in some states, it could cause legal trouble. In general, union activity is considered a protected right and should not be part of a background check.
Salary checks have recently come under scrutiny because of their effect on pay equity. Many state laws now limit whether an employer can check the previous salary to encourage equal pay for equal work. If an employer asks about previous salary — which is currently or soon will be illegal in New York City, New Orleans, Philadelphia and all of Massachusetts — a potential employee is not obligated to reply.
Under Title VII of the Civil Rights Act , certain protected information should never be a part of a hiring decision for both potential and current employees. Protected information includes age, race, ethnicity, color, sex, religion, national origin, disability, marital status and pregnancy.
It is illegal for an employer to ask about these characteristics during a background check, interview or performance review. Given the information shared online, especially on social media, though, it is possible and likely that a business will accidentally learn about protected characteristics during other parts of a background check. However, it is always illegal for this information to influence employment decisions.
Though federal laws apply to all businesses, state laws vary greatly.
And if you do business in more than one state, it can become confusing to know which laws apply to your situation.