In March, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued new guidelines regarding the interplay between federal antidiscrimination laws, the Fair Credit Reporting Act (FCRA), and background checks. According to the guidelines, employers are reminded that although they may ask questions about an individual's background or require a background check, they are prohibited from doing so with respect to medical and genetic information, including family medical history. In the case of medical background, employers should not delve into this area before making a conditional job offer, and they may inquire only if there is objective evidence that the prospective or current employee is unable to perform the job's duties and responsibilities, or if the individual poses a safety risk.

Employers should be consistent in their background check policies; they should seek the same background information from all applicants. The EEOC and FTC also cautioned employers about basing employment decisions on background problems that may be more common among persons of protected classes (e.g., race, age, gender, religion).

Regarding the FCRA, the guidelines remind employers that when seeking a background report, they must (i) obtain the individual's written permission; (ii) inform the individual in writing, in a separate and independent document (not buried in legal jargon), that the background report might be used in making an employment decision; and (iii) provide the individual with written notice when the employer has made an adverse employment decision based on the background check.

As the guidelines note, background checks are an important resource for employers, but they must be done properly. For those interested in reviewing the guidelines in full, they can be accessed at www.eeoc.gov/eeoc/publications/background_checks_employers.cfm

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