There's a reason we're writing about background checks again: For the first time, the Federal Trade Commission and the Equal Employment Opportunity Commission have gotten together to prepare two jointly released guidances on how employers can use background information in personnel decisions in ways that comply with federal law.
Background checks can be an important step in any hiring process. They can help employers pick the right candidate for a position and avoid some candidates who present obvious risks. At the same time, employers risk violating federal and state laws if certain procedures are not followed, or if the use of background information has a discriminatory impact or effect. The Fair Credit Reporting Act, enforced in part by the Federal Trade Commission, requires employers to follow certain procedures when obtaining background information from third-party companies. At the same time, other federal laws prohibit the discriminatory use of background information in personnel decisions, and are enforced, at least in part, by the Equal Employment Opportunity Commission. Joint guidances help employers who are thinking about using background checks, or who might be concerned about whether they are doing them correctly. They don't make new law; what they do, however, is provide an easy-to-read summary of the legal requirements that employers need to follow.
The employer guidance is available here.
The employee guidance is available here.
Certainly reading the entire Fair Credit Reporting Act is a meaningful exercise, and perhaps everybody should read it at least once. Like Moby Dick. But now there is a meaningful summary of what it means for employers.