Background Checks: EEOC, FTC Release Tips for Employers

Author: David B. Weisenfeld, XpertHR Legal Editor

March 13, 2014

The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) have teamed up to create new resources relating to background checks performed for employment purposes.

Earlier this week, the agencies announced their co-publication of two documents that aim to address how their respective laws apply to the background check arena. One document is designed for employers while the other targets job applicants and employees.

The agencies each focus on a few key points in offering tips on the use of background information. The EEOC advises that an employer:

  • Treat everyone equally (e.g., refrain from asking only people of a certain race about their financial history or criminal record);
  • Take special care when basing employment decisions on background issues that may be more common among certain groups; and
  • Refrain from asking medical questions before a conditional job offer has been made.

The FTC also offers recommendations in this joint publication for employers when using background information for employment purposes. A number of employers have had to pay hefty settlements for misusing this information under the Fair Credit Reporting Act (FCRA). Many of the FTC's recommendations focus on compliance issues relating to FCRA, including:

  • Obtaining written permission from job applicants before performing a background check;
  • Avoiding misuse of the information obtained in violation of federal or state law; and
  • Giving applicants or employees advance notice if taking action against them based on the findings of a background report.

At the same time, the agencies alert job applicants and employees that an employer may ask for all sorts of background information during the hiring process provided it does not discriminate, so long as it steers clear of asking about medical history or genetic information. The EEOC and FTC also provide a host of additional resources for applicants and employees who believe they have been wronged by an employer during the hiring process.

In a press release, EEOC Legal Counsel Peggy Mastroianni said, "The No. 1 goal here is to ensure that people on both sides of the desk understand their rights and responsibilities."