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Employment Background Checks and the Fair Credit Reporting Act

Credit and criminal background checks are part of the standard hiring process for most employers. These checks provide employers with a brief snapshot of the type of person that they are considering hiring. Requiring a background check as a condition of employment is not illegal. However, employers conducting background checks on job applicants or current employees should be aware that they are subject to certain requirements under the Fair Credit Reporting Act (FCRA).

Requirements before Obtaining Employee Background Information

Most companies that obtain employee background information do so through a company in the business of putting together background checks. Before background information can be lawfully obtained the FCRA requires that the employer first:

  • Provide the applicant or employee with notice in writing and stand-alone format that you might use the information for decisions about his or her employment. The notice cannot be in an employment application.
  • Obtain written permission from the applicant or employee to do the background check. This can be included in the document used to notify the person that you will get the report.
  • Certify to the company providing the report that you:
    • Notified the applicant and received permission to get a background report.
    • Complied with all of the FCRA requirements; and
    • Will not discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Applying Employee Background Information to Decision Making Process

A background check can reveal pertinent information that may sway an employer’s decision whether or not to hire a potential candidate. When choosing not to hire a person based on background information obtained through a background check company, the FCRA has additional requirements that must be followed. Before taking action to inform the candidate that he or she will not be hired, the employer must give the applicant:

  • Notice that includes a copy of the consumer report that was relied upon to make your decision; and
  • A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” which should be provided to the employer from the company that sold the report.

By giving the person the notice in advance, the applicant has an opportunity to review the report and explain any negative information. After informing the potential candidate that employment will not offer, the employer must inform the applicant either, orally or in writing:

  • that he or she was rejected because of information in the report;
  • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it;
  • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days; and
  • the name, address, and phone number of the company that sold the report;

Getting Rid of Employee Background Information

Once the hiring process is over, it is good practice to dispose of the background information obtained for each potential candidate. However, the law requires that these reports must be eradicated in a secure manner. This usually includes burning, pulverizing, or shredding paper documents. It is also imperative that electronic information is properly erased so that it can’t be read or reconstructed.

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