FTC and EEOC Publish Background Check Guide for Job Applicants

Angela Preston

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If there’s one part of the hiring process when the candidate experience can blow up, it’s the background check. The idea of a background check is daunting for most people—even those with a clean record. If a candidate is rejected as a result of something in the background check, it is increasingly common to hear from their legal representative. One way employers can avoid problems in the background screening process is to educate job applicants. As the old saying goes, an ounce of prevention is worth a pound of cure.

A Job Applicant’s Guide to Background Checks

The Federal Trade Commission (the FTC) and the Equal Employment Opportunity Commission (EEOC) teamed up earlier this year to help remedy the uncertainties surrounding employment background screening. They published a guide billed as a resource to educate and inform job applicants about the background screening process. With respect to job candidates, the EEOC’s press release hit on both discrimination issues and accuracy requirements under the Fair Credit Reporting Act (FCRA):

“…the agencies want job applicants to know that it is not illegal for potential employers to ask about their background, as long as the employer does not unlawfully discriminate. However, when people are turned down for a job or denied a promotion based on information in their background reports, they have the right to review the reports for accuracy.”

Nicely put. The jointly published job applicant guide, Background Checks: What Job Applicants and Employees Must Know, contains a plethora of helpful information for job applicants.  My only criticism is that at times it reads like a tutorial on how to sue your prospective employer.

FTC Update in November 2014

Last month, the FTC published its own version of the guide, Background Checks: Tips for Job Applicants and Employees. While much of the information is taken directly from the joint guide, the FTC’s updated version benefits from a cleaner and more concise layout. The tips are well marked and easy to understand, and the guide also contains a nice addition—a step-by-step overview of the requirements for adverse action based on criminal records. If I had to pick the better publication, I would give the newer FTC version the edge.

An Employer’s Guide to Background Checks

One other tip—the FTC and the EEOC have also published a joint guide specifically for employers. This guide, Background Checks: What Employers Need to Know, summarizes in five short pages an employer’s responsibilities before, during, and after the background check. It covers Title VII restrictions for protected class information, the prohibition on gathering medical or genetic information prior to the background check, and explains in layman’s terms the need for prior written disclosure and authorization under the FCRA. The section on using background check information once again discusses Title VII and discrimination related concerns, although conspicuously absent is any mention of individualized assessment. This omission is curious considering the emphasis on individualized assessment in the EEOC’s 2012 enforcement guidance and the EEOC’s enforcement actions since the issuance of the guidance. The publication provides a concise walk through the adverse action process, and then concludes with information on disposal of records and document retention. The document also contains a list of links directing employers to a number of other helpful resources from the FTC, EEOC and other government publications. This guide explains background screening basics at a very high level, and it’s a useful introduction to the topic for employers. It’s a great starting place for staff within your organization who can benefit from a better understanding of background checks.

Conclusion

The best way to de-mystify the background check is to educate your staff and job candidates alike about what they can expect from the process. It’s a good practice for employers to provide job applicants with either of the guides mentioned above prior to conducting a background check, or to post one of them on your job site as a resource.

Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
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