Obtaining and using background information about prospective and current employees can be dangerous, has legal implications and can result in possible liability. There are federal laws that apply and most states have laws that apply. Recently the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission issued two joint publications. One was titled “Background Checks – What Employers Need to Know.” The other was titled “Background Checks-What Job Applicants and Employees Should Know” Both publications deal with the federal laws. The documents are available on the EEOC's and FTC’s websites. Only the Publication dealing with Employers will be discussed in this article.

  The coverage of the Employers publication was described as follows:

  “When making personnel decisions—including hiring, retention, promotion, and reassignment—employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.

  “However, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

  “In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA….”

  The topics covered in the Publication are the steps to take:

1.      Before You Get Background Information;

2.      Using Background Information;

3.      Disposing of Background Information;

4.      Obtaining Further Information from EEOC and FTC.

  It is important to check your own state and local laws in this area. As was stated in the Publication:

   “It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.”