Employers frequently make decisions about applicants and current employees based on background reports obtained from third-party companies. These employment background reports can include information about your criminal history, credit information, educational history, medical information, employment history, address information, and even your use of social media. This information can be highly-sensitive, private, and determinative of whether you get a job. Several federal laws regulate the use of employment background reports.
The FCRA imposes special requirements on the use of employment background checks, including:
An employer must obtain your written authorization BEFORE ordering a background report about you.
An employer must provide you with a written notice disclosing that it may order a background report about you.
Pre-Adverse Action Notice:
If an employer thinks it might fire, demote, not promote, or not hire you because of information in the report, it must give you a copy of the report and a "Summary of Rights" BEFORE making its final decision. This is what's called the "pre-adverse action notice," and it is a critically important right to employees. This gives you time to review the report for any inaccurate information and ask the background reporting company to fix it.
Post-Adverse Action Notice:
If an employer decides not to hire, promote, or keep you because of information in your background report, it must provide you with the contact information for the company that supplied the background information, as well as other additional disclosures.
Employers may not use information in employment background reports to discriminate against employees based on their race, gender, national origin, color, age, religion, disability, or genetic information. For example, an employer may not treat applicants with the same criminal convictions differently because of their race, gender, national origin, color, age, religion, disability, or genetic information.
Even if an employer uniformly applies its policy, the use of criminal record information or credit history information can still disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
Under the Americans with Disabilities Act, an employer may ask disability-related questions and require medical examinations only after the applicant has been given a conditional offer of employment. If you believe an employer has made a decision based on your medical information, your rights may protected both by the FCRA as well as the ADA. For additional information related to medical inquiries in employment:
If you believe your rights may have been violated, or you just have a question about a background report, please contact the background report lawyers at Weiner & Sand LLC to discuss your rights.