By Michael Fox, Esq.
Question: We have several positions in our company that require financial discretion. May we perform background checks on applicants for these jobs?
After years of debate, the EEOC published controversial new guidance on employers' use of background-check policies and practices. Then, it used those guidelines to file a pair of important lawsuits — against BMW and Dollar General — alleging violation of federal discrimination law. Every employer needs to be in compliance.
Answer: Yes. In 2012, the EEOC issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. The guidance is a summary of the EEOC's long-held position that employer reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin.
In March 2014, the EEOC and the Federal Trade Commission (FTC) jointly released two pamphlets on the use of background checks in the workplace, one directed at employers and the other at applicants and employees.
These documents are the first official federal insight on this topic since the 2012 release of the EEOC's Enforcement Guidance. However, they do not break new ground. Rather, they reiterate "best practices" related to background checks.
The publications remind employers that background checks must comply with the federal Fair Credit Reporting Act (FCRA), if the background information is being obtained from a consumer reporting agency (CRA), as well as Title VII of the Civil Rights Act of 1964.
The documents emphasize that employers should take the following steps when making inquiries into employees' and applicants' background information:
- Treat all applicants/employees equally regardless of protected characteristics.
- Obtain a signed Disclosure and Authorization (D&A) form from an applicant/employee before obtaining a consumer report from a CRA.
- The D&A form should be in writing and in a stand-alone format that consists solely of the legally required disclosures and authorization.
- The D&A form should not be included in the employment application.
- If the employer will be seeking an investigative report (a special type of consumer report based on personal interviews), it must tell the applicant/employee of his or her right to request information on the nature and scope of the investigation.
Pepsi thought its background checks were in compliance. The company believed it was using background checks in a nondiscriminatory way. But the EEOC saw things differently. The result: Pepsi paid $3.2 million to settle an EEOC race-bias charge. Kmart also thought it was in compliance, but it was hit with a class-action lawsuit alleging violations of background-check laws including the federal Fair Credit Reporting Act. The result: Kmart paid a $3 million settlement. The list of well-reported companies continues to grow... will you be next?
Before taking an adverse action against an employee who has been the subject of a background check, employers must provide a pre-adverse letter notice that includes:
- A copy of the consumer report in question and
- A copy of "A Summary of Your Rights Under the Fair Credit Reporting Act."
This letter is also an opportunity to invite the recipient to explain any negative information or provide context.
Utilize an adverse action letter if the employer is taking an adverse action against an applicant/employee that is based, in whole or in part, on a consumer report provided by a CRA. This letter should include the following:
- That the applicant/employee was rejected because of information in the consumer report
- Contact information for the CRA
- A statement that the CRA did not make the hiring decision and cannot provide specific reasons for it
- Notice that the applicant/employee has the right to dispute the accuracy or completeness of the report, and obtain an additional free copy of the report from the CRA within 60 days.
Retain all personnel or employment records for at least the appropriate period of time under the law (per the jointly released publications, for most employers, at least one year after the records were made, or after a personnel action was taken).
Don't wait for a lawsuit or EEOC charge to make sure you're in compliance. It's vital — for your company and your career — to get in line now with the EEOC's Enforcement Guidance on the Consideration of Arrests and Conviction Records.
Get a copy of Background Checks: Best Practices & Legal Compliance. You'll discover:
Best of all, your trainer for this presentation will be a true expert on this topic, attorney Scott Brutocao. You can also ask him your own questions about this issue during the Q&A portion of the webinar. Get your copy now!
- The legal risks of background checks (both criminal and credit).
- When, if ever, you can consider arrest records in hiring.
The elements of a valid, legally-compliant background check consent form (the subject of almost all new FCRA class-action lawsuits).
- How to comply with the EEOC Guidance that you perform an "individualized assessment” on applicants screened out by background checks. (Understand the 9 key factors to consider!)
- The most important, practical takeaways from the EEOC Guidance and FCRA class-action lawsuits.