When making personnel decisions, including hiring, retention, promotion, and reassignment, employers sometimes do background checks on applicants and employees. Any time you use an applicant’s or employee’s background information to make an employment decision, you must comply with federal laws that protect applicants and employees from discrimination based on race, color, national origin, sex, or religion; disability; genetic information; and age. These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

Recently, the EEOC and the Federal Trade Commission (FTC) issued joint informal guidance regarding issues employers may face when consulting background checks. Here are some key points for employers:

 

1. An employer may ask about a person’s background except for certain restrictions on medical and genetic information.
2. If using a background check, the employer must be in compliance with laws prohibiting discrimination.
3. When an employer gets a background report from an outside agency it must comply with the Fair Credit Reporting Act. In California, it must also comply with the Investigative Consumer Reporting Act.
4. Employers should seek the same background information from all individuals.
5. Employers should not request a person’s genetic information which includes family medical history. If the employer has that information, it should not use it to make an employment decision.
6. Employers cannot ask medical questions before a conditional job offer has been made, and can only ask current employees medical questions if there is objective evidence that the employee is unable to do the job or poses a safety risk because of a medical condition.
7. Employers must preserve records for one year.

 

It is critical that employers be compliant with federal, state and local laws regarding background information.