Employers today want their hiring decisions to be informed by thorough and reliable information and candidates and their backgrounds. The law allows employers to ask applicants questions and request background reports. The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) regulate these requests and protect applicants from discrimination and misuse of their personal information. What do the EEOC and the FTC say about pre-employment background checks? Let’s take a brief look at the issues these two commissions consider:
Prior to the Background Check
EEOC
The EEOC’s focus is fairness and discrimination. To that end, they require that employers treat applicants equally. Background check requests must be made depending upon the position being filled rather than the applicant. For example, it’s okay for a bank to require that anyone applying for a bank teller position must pass a criminal history record check; it’s not okay for a bank to request criminal history reports on all applicants from a certain race or ethnicity. It’s illegal to run a background check based on factors such as race, gender, or age.
The EEOC also makes it illegal to use genetic or medical information to make hiring decisions. The only way medical info is considered relevant is if a medical condition interferes with an individual’s ability to perform their job.
FTC
The FTC’s focus is on consent. Applicants must consent in writing to have their background check done by a potential employer. The employer must make clear what information will be requested and how it will be used in the hiring process.
Use of the Information
Once the information is obtained, the EEOC and FTC again have different priorities when it comes to regulation.
EEOC
With fairness in mind, the EEOC focuses on the following:
- Applying the same standards to every applicant
- Avoiding policies or practices that disadvantage any class or category of people.
- Providing mitigation for individuals with disabilities
FTC
When background check information is used for hiring decisions, the FTC requires the following:
- Adverse action notifications are provided that give information about the results and how it impacts hiring, as well as directions on how to correct or contest the findings
After the Background Check
EEOC
The EEOC requires that all records be kept for at least a year and, in some specific cases, two years.
FTC
Once the requisite time has passed, the FTC requires that background check reports be disposed of securely to protect personal information.
The Bottom Line
Talk to your legal team about more specific legal requirements relating to using background checks to protect your organization.
