Highlights of the Joint Guidance from the EEOC and FTC: For Employees and Employers
Recently the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) jointly released a guidance regarding the use of public records and consumer reports in pre-employment and employment background screening, as well as protections for the consumer.
"The Joint Guidance is clear evidence that the federal government is very serious in monitoring the use of public records as part of the employment vetting process. Greater scrutiny will be placed on employers in how and when they utilize public records," states Adam Almeida, President and CEO of CriminalBackgroundRecords.com.
The Joint Guidance is separated into several parts:
- What Employers Need to Know
- Before You Get Background Information
- Using Background Information
- Disposing of Background Information
Each area examines critical points of consideration, often separating the EEOC point of view from the FTC. However, it is important to note that both agencies are in pursuit of the same result: fair and equal use of background reports under the legal umbrella of the Fair Credit Reporting Act (FCRA).
The industry group Society for Human Resource Management released a commentary on the Joint Guidance at stated:
The guide for employers does provide a good review of an employer’s obligations under the Fair Credit Reporting Act (FCRA), and a snapshot of additional obligations under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and Title VII’s recordkeeping requirements... http://www.shrm.org/hrdisciplines/safetysecurity/articles/pages/eeoc-ftc-guidance-background-checks.aspx
The Joint Guidance is designed to define what can and cannot be used in regards to public records and background screening as well as the rights of an individual during this process.
"The Guidance explains that it is not illegal to gain information through record retrieval or interview, but it may be illegal to use such information and data in a discriminatory manner," states Adam Almeida.
Key highlights from the Joint Guidance are:
"... In all cases, make sure that you're treating everyone equally....” http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm
"...tell the applicant or employee you might use the information for decisions about his or her employment...” ibid
Informing an applicant that public records and background information are being used in making a hiring or post-hire decision must be provided in a clear, written format. Further, an employer must gain written permission to gather such information. Last, indicate that a candidate can request a copy of any background information used in making a decision.
The Joint Guidance also highlights that same standard must be used on all individuals and that all information must be used in the same way.
"Equality and preventing discrimination are key takeaways. Eliminating the potential for disparate impact is a critical component of background screening and is a highlight of the Joint Guidance," states Almeida.
The Joint Guidance addresses adverse action or "not hiring or firing an employee" within the Guidance and outlines the employees’ rights and protections.
Recently Swift Transportation of Arizona settled a class action lawsuit for $4.4 million due to its failure to comply with the FCRA and requirements of notification under the adverse action clause. http://cdllife.com/2014/featured/swift-pay-4-4-million-settle-background-check-lawsuit/
In the end employees large and small should work with a third-party background screening company in order to ensure compliance to the components of the FCRA as enforced by the Joint Guidance from the FTC and EEOC.
"The legal environment for background screening is becoming increasingly complex. Working with a third-party background screening company, one that stays up-to-date with all legal components governing the use of public documents and conducting criminal background checks is the best way to remain compliant and avoid potential penalty for accidental misuse of information,” Almeida states.
CriminalBackgroundRecords.com is a third-party background screening company that assists companies large and small with all of their background screening requirements. With vast knowledge of local, state and federal laws and regulations, CriminalBackgroundRecords.com can assist in creating a compliant pre-employment background screening policy.
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