Background Checks Blog – Compliance Updates, News & Opinions

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What is a background check?

A background check is a process in which an individual’s criminal and personal history is examined in order to verify information and assess their suitability for certain positions or activities. This can include things like checking for criminal records, reviewing educational and employment history, and conducting credit checks. Background checks are commonly used for employment, housing, and certain types of volunteer work. They can also be used for more sensitive positions such as those involving national security or working with children.

The Fair Credit Reporting Act (FCRA) governs the process of conducting criminal background checks for employment purposes in the United States. Here’s how FCRA relates to criminal background checks:

1. Disclosure and Authorization: Before conducting a background check, employers must notify the applicant in writing that a background check will be performed, and this disclosure must be in a clear, conspicuous standalone document. The applicant must give written permission for the check.
2. Accuracy: The FCRA mandates that the information in the report must be accurate and up-to-date. If there’s incorrect information, the individual has the right to dispute it.
3. Use of Information: If an employer decides not to hire someone based on information in the background report, they must follow a two-step adverse action process:

• Pre-Adverse Action: Before making a final decision, the employer must provide the applicant with a copy of the background report and a document called “A Summary of Your Rights Under the Fair Credit Reporting Act.” This gives the applicant an opportunity to review the report and dispute any inaccuracies.
• Adverse Action: After giving the applicant time to respond (a reasonable period), if the employer still decides to take adverse action, they must inform the applicant again. This notice should include:
  The contact information of the company that provided the report.
  A statement that the company selling the report did not make the hiring decision and cannot give specific reasons for it.
  Notice of the individual’s right to dispute the accuracy or completeness of any information in the report, and to get an additional free report from the company if requested within 60 days.
• Rights to Dispute: Individuals have the right to dispute incomplete or inaccurate information in their background check reports. The reporting agency must then investigate and correct or confirm the information typically within 30 days.
• Privacy and Confidentiality: The information from background checks must be kept confidential and can only be used for the intended purpose (e.g., employment decisions).
• Non-Discrimination: While not exclusive to FCRA, related laws like those enforced by the Equal Employment Opportunity Commission (EEOC) require that employers do not discriminate based on information in background checks unless it’s relevant to the job. This means if a criminal record is found, its relevance to the job in question should be considered before making a decision.
• State and Local Laws: Besides FCRA, various states and even some cities have their own laws regarding criminal background checks which might offer additional protections or impose further restrictions on how such information can be used in employment decisions.

Remember, while FCRA sets a federal baseline, states can provide additional rights or restrictions, so it’s also important to be aware of local laws where the employment is based. From general sentiment, there’s an ongoing discussion about the balance between public safety, individual rights, privacy, and the reintegration of individuals with criminal records into society.