EEOC and FTC Issue Joint Guidance on Background Screening

For the first time, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) have teamed up to publish joint guidance on background screening. The EEOC’s role in the joint venture is to ensure compliance with civil rights laws, and the FTC with the Fair Credit Reporting Act (FCRA).

The guidance, titled Background Checks: What Employers Need to Know, discusses each agency’s perspective of what employers must do before obtaining background information, how background information can be used, and how to dispose of background information.

The guidance stresses that employers cannot screen applicants or employees based on their protected statuses. It also tells employers not to try to obtain or use applicants’ or employees’ genetic information in making employment decisions. And, it goes through the FCRA process to obtain and use background information.

The FCRA applies to almost all background screening of applicants and employees done by third parties for employers. It requires employers to provide separate written disclosures and to obtain written authorization prior to conducting background screens. Before taking adverse action based on a screen, employers must make additional disclosures, provide copies of the screen, and give the applicant or employee an opportunity to correct any inaccurate or incomplete information the employer may be relying upon. Lastly, employers must provide written notices to applicants or employees after taking adverse action against them based on a screen.

The guidance reminds employers that they cannot simply throw background information in the trash when they are finished with it. Instead, they must retain this information for at least one year (MSEC recommends two years) and dispose of it in a manner that preserves the confidentiality of any personal information it contains such as names, birthdates, and social security numbers.

The agencies issued separate guidance for applicants and employees titled Background Checks: What Employees and Job Applicants Need to Know. This joint venture is further evidence of the attention federal agencies are giving to employer background screening. If you conduct background screening, you should review your processes to ensure they are narrowly tailored to meet your organization’s business needs. Base adverse employment decisions resulting from background screens on job-related criteria and make sure that you have followed all of the FCRA’s requirements.  And, remember to ensure that your organization complies with any additional state or local background screening requirements.