Posted on September 12, 2014

In a recent webinar, Katharine Weber, an experienced labor attorney, discussed many issues related to compliance; one of the topics she addressed specifically was guidelines regarding background check policies and EEOC and Fair Credit Reporting standards.

The Fair Credit Reporting Act

The Fair Credit Reporting Act, originally passed in 1970, contains guidelines on the use of background checks when hiring prospective employees. While it is acceptable to take action based on a conviction that makes a prospective employee ill-suited for the position for which they are being considered, it is not lawful when the decision is based on an arrest only.

In addition, if a prospective employee does not get the job based on a background check, the company is required to show the report to the applicant and tell them how to get their own copy. This is the federal rule, but there are also state and city statutes about what you can and cannot ask an applicant and how far back into the past data collection can go.

Recent EEOC guidance

The EEOC (Equal Employment Opportunity Commission) published guidance around background check compliance in 2013. They agreed that background checks are sometimes a necessary way to vet candidates for employment, however when you do so you should implement a targeted screen and use an individualized assessment before you take action based on the information you find. Another recommendation was to take the question off the application altogether and save it for the interview stage of the employment process.

Questions to ask candidates

In addition to their general guidelines, the EEOC listed some questions you could ask an applicant if something suspicious has been revealed during a background check.

* Could you shed some light on the accuracy of the report?
* What are the facts and circumstances surrounding the conviction?
* Have you been in the field of work you’re applying for since the conviction?
* How long ago was the conviction?
* How long ago were you released from prison?

Other factors to consider

After hearing the candidate’s take on the uncovered information, there are often additional things to consider when making a decision, such as:

* The length and consistency of employment after the offense
* Whether they have successfully completed rehabilitation
* Whether they have a character reference who can vouch for their suitability for the job
* Whether they were honest about their conviction

In the end, employers must make a decision about which candidate will be the best for the job. If they resolve not to hire someone based on a criminal record, they also must make sure that their decision was not clouded by the conviction record and that they have been compliant with both FCRA and EEOC regulations. If not, employers might end up with a major lawsuit on their hands.

For more guidance regarding background check regulations, check out Paycor’s HR Support Center, which contains a wealth of information about employment regulations and even sample policies.


_Sources: Attorney Katharine Weber, Federal Trade Commission

This content is intended for informational purposes only and should not be considered legal advice.