Background checks are a vital tool in avoiding hiring problems and in limiting a company’s liability. With more than 65 million people in the United States having been arrested or convicted, and in the age of negligent hiring lawsuits where employers have been successfully sued for criminal and civil acts performed by employees, it is not surprising that more than 90 percent of employers conduct criminal background checks, with almost 70 percent requesting broader “consumer reports” on all job applicants. However, an employer must be careful as it can run into serious trouble for not following the rules regarding background checks.
In recent years, state and federal laws and regulations have dramatically altered the landscape of conducting background checks for employment purposes. In 2010, the Oregon legislature made it unlawful for most Oregon employers to use credit reports in making employment decisions. In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination laws under Title VII, issued Guidance stating that sweeping company wide decisions to not hire or promote based on criminal history violated Title VII. Also in 2012, Congress amended the Fair Credit Reporting Act (FCRA), detailing procedures to be followed when a “consumer report” (which includes criminal and civil records, driving records, social media research and other information obtained about an applicant/employee by a consumer reporting agency) is used for employment purposes.
Originally published in the Law Journal - September 2013.
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