EEOC and FTC Issue Joint Publications on Background Checks

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On March 10, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) jointly released two pamphlets on the use of background checks in the workplace: (a) one directed at employers and (b) the other at applicants and employees. The two documents, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, may be found on the EEOC’s website. Although these documents are the first official federal insight on this topic since the 2012 release of the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records, with one or two exceptions (discussed below), the documents do not break new ground; rather, they reiterate known “best practices” related to background checks in the employment context.

While acknowledging that “it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check,” the publications remind employers that any such inquiries 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 Right Act of 1964. Although the documents do not detail all legal requirements or “best practices” under these laws, they emphasize that employers should take the following steps:

  • Treat all applicants/employees equally regardless of the individual’s race, national origin, color, sex, religion, disability, genetic information, and/or age.
  • Obtain a validly signed Disclosure and Authorization form (D&A form) from an applicant/employee, prior to 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), the employer must tell the applicant/employee of his or her right to request information on the nature and scope of the investigation. (Interestingly, the FTC made no mention of the form, “A Summary of Your Rights Under the Fair Credit Reporting Act,” in connection with the discussion on investigative reports. Some employers provide a copy of this summary of rights as a disclosure in the D&A form in what is perceived to be a conservative interpretation of requirements under the FCRA.)
  • Ensure that employers have made proper certifications to any applicable CRAs concerning the employer’s responsibilities under the FCRA.
  • Provide an applicant/employee with a pre-adverse letter notice prior to taking an adverse action.
  • This pre-adverse action letter should include,
    • a copy of the consumer report in question; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
  • Although not explicitly included in the newly-issued publications from the EEOC and FTC, this letter also is a good place for employers to invite the recipient to explain any negative information or provide additional 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 (which, importantly, is not required by the federal FCRA);
  • contact information for the CRA that provided the report;
  • that the CRA did not make the hiring decision and cannot provide specific reasons for it; and
  • that the applicant/employee has the right to dispute the accuracy or completeness of the report and obtain an additional free copy 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.) The employer publication also includes a link to EEOC’s summary of selected recordkeeping obligations. We recommend that certain records be kept for longer periods. For guidance on the period of time to keep these records, contact the Ogletree Deakins attorney with whom you normally work.
  • Properly dispose of all consumer reports and information gathered from the reports once the applicable record-keeping period is over.

  • Proper disposal can include burning, pulverizing, or shredding hard copy documents or permanently deleting electronic information.

These publications should serve as a reminder that both the EEOC and FTC are making enforcement of the FCRA and Title VII a top priority. Employers that utilize background checks should ensure that their processes and procedures comply with these laws.

Employers should note that these federal requirements are in addition to state requirements on the use of background check information. Federal and state background check requirements are summarized in the firm’s O-D Comply: Background Checks subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.