Any time you use an applicant's or employee's background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. Although I have posted general information about background checks in a previous blog, today's topic is about the federal regulations you must adhere to that will protect you and the candidate.
Are you sure you need to perform a background check? I suggest you consider the following questions:
- Do your employees have access to sensitive information such as social security or bank account numbers?
- Are they working in clients’ homes?
- Will the candidate have access to your accounting where fraudulent transactions can be recorded?
- Will the employees have access to private information such as new product development, technology, etc?
- Will the employees be working with children?
If you realize that you DO need to perform a background check, it is important to stay up to date on these federal regulations and follow the rules and regulations very carefully, or your company could be held liable. HR Pilot compiled the following information from the EEOC and FTC as a guide for you to get acquainted with the proper procedures for background checks.
Equal Employment Opportunity Commission (EEOC) provides the following guidance:
- Do not discriminate by asking only certain groups/classes of employees for background information.
- Do not ask about medical conditions.
- Do not use information gathered during a background check to discriminate against certain groups/classes of employees. Apply the same standards to all employees (i.e. if you reject applicants because of certain financial histories, you must reject all applicants, regardless of race, sex, etc.).
- Be mindful of the disparate impact (unintentional discriminatory effect) background checks have on certain members of a protected groups.
- Keep the application and other records related to hiring for at least one year. If your organization receives a charge, you must keep the records until the case is concluded.
Federal Trade Commission (FTC) guidance:
- If you get background information during the hiring process, you must:
- Notify the applicant or employee in a stand-alone written document that the information gathered may be used in the decision making process.
- When asking a company to provide an “investigative report” (personal interviews, etc.) you must inform the applicant or employee of the right to a description of the nature and scope of the investigation.
- Obtain written permission from the applicant or employee to conduct the background check.
Certify to the company conducting the background check that you have notified the individual, complied with the above requirements, and that the organization will not use the information to unlawfully discriminate against applicants and employees.
- Before taking any adverse action based on the information in the background check, the organization must give the applicant or employee notice (including, a copy of the consumer report and a copy of the “A Summary of Your Rights under the Fair Credit Reporting Act”, provided by the reporting company).
- When taking the adverse action, tell the applicant or employee (oral or written) that your decision was based upon information in a background report. The applicant or employee must be provided with the contact information for the company that ran the check and provided with a copy of the report.
- Inform the applicant or employee of their right to dispute the accuracy or completeness of the report and to get a free copy of the report.
Much more information is available at: http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm
Good luck with your hiring!
