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What Rights Do Employers Have to Issue Background Checks?

Per state and federal law, an employer may check a job applicant’s or employee’s background, including for criminal records.

However, it’s important for employers to ensure their compliance with laws and regulations that protect employees from discrimination. Employers may not discriminate based on race, religion, gender, disability, genetic information or age, among other protected classes. Additionally, when performing background checks, employers must comply with the Fair Credit Reporting Act (FCRA), enforced by the Federal Trade Commission.

The following a brief overview of the rights and responsibilities of employers when issuing background checks.

Before collecting background information

Before an employer performs a background check, it must make sure it is doing so for the right reasons. A company cannot perform background checks based on a person’s demographics. Only asking minority applicants about their criminal records, for instance, is a clear example of discrimination.

The FCRA also requires employers to follow certain procedures if getting background information from an organization that specializes in compiling this information:

  • The employer must inform the applicant or employee in writing that it may use this information for decisions regarding employment. The notice cannot be provided in an employment application—it must be a standalone form. Employers may add in some additional information in this notice, such as the nature of the background check being performed, but its sole purpose should be to provide notice of the background check.
  • The employer must provide an applicant or employee with notice of his or her right to a description of the scope and nature of the background investigation, if using a company to provide an “investigative report.” This report contains more than just criminal record, and could consist of interviews with others about the applicant’s character, reputation, traits and lifestyle.
  • The employer must get written permission from the applicant or employee to perform the background check. A space designated for a signature can be included in the notification document. If the employer intends to continue getting background reports during the applicant’s employment, it must clearly state so on this form.
  • The employer must certify to the background report company that it has complied with all FCRA requirements, notified the applicant of the background check, received the applicant’s permission to proceed with the background report and will not discriminate against the applicant or misuse the information provided in the report.

Once an employer has received a complete background report on an applicant or employee, it may continue with its employment decision. If, for example, a company has decided to take an adverse employment action, it must provide notice to the applicant or employee, including a copy of the report on which the company based the decision and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act form.

To learn more about your rights and responsibilities as an applicant or employee when it comes to background checks, meet with a knowledgeable New York wages and labor attorney at Cilenti & Cooper, PLLC.

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