The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Federal Trade Commission (FTC) have just co-published a guidance that explains how the agencies’ respective laws apply background checks performed for employment purposes. The document reaffirms that it is illegal to discriminate based on a person’s race, color, national origin, sex, religion, age (40 or older), disability, or genetic information, including family medical history, when requesting or using background information for employment, regardless of where the information was obtained.  It calls for careful consideration for when and how background checks can be used for a job applicant or for a current employee. “ The EEOC simply seeks to ensure that their use are undertaken carefully to ensure that employment opportunities are not denied inappropriately,” said EEOC spokeswoman Christine Nazer. (1)

The new guidance is mostly a restatement of the EEOC’s longstanding guidelines on the use of criminal background checks. It is intended to prevent racial and criminal discrimination and states that background screening should only be used when it is job-related and necessary to the business.  According to the Society of Human Resource Management, about 73 percent of employers use criminal background checks on all employees.

Here are some rules for employers to follow:

·         Before a background check is performed, you must get an applicant’s consent in writing

·         Once a background check is to be performed, you must tell the applicant that you may use the information obtained (credit information or criminal history) when making decisions about his or her employment. This notice must be in writing and can’t be part of the employment  application. 

·         Certify that the company doing the background check has gotten the permission of the applicant and has complied with the Fair Credit Reporting Act.

·         Before taking adverse action, such as not hiring or firing a current employee, you must give them a notice with a copy of the report you used in making your decision. Once the individual has it, he or she have the opportunity to explain any negative information

·         After taking adverse action, you must tell the person, orally or in writing, that he or she was rejected based on findings in the report.

For further information visit the following:

Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance  csgjusticecenter.org/wp-content/uploads/2012/11/Reentry_Council_Mythbuster_Employment.pdf.

Using Consumer Reports: What Employers Need to Know at www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know

(1) Tahmincioglu, Eve. “New Rules Set On Background Checks For Job Seekers” nbcnews.com

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