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The EEOC -- can't live with 'em, can't live without 'em.
As irritated as I sometimes become with the agency's lawsuits, I have to hand it to them. The guidance they have recently published jointly with the Federal Trade Commission on background checks is great -- written in plain English (no legalese), concise, and convenient. An employer can read and comprehend it without even needing an intermediary.
I may be out of work soon!
In an effort to justify my existence, I've boiled the guidance down to the following
10 EASY RULES FOR BACKGROUND CHECKS IN HIRING
1. Treat everybody the same, regardless of race, sex, national origin, religion, color, age, disability, or genetic information. Easy, huh?
2. Don't ask for medical information or genetic information. The first violates the Americans with Disabilities Act, and the second violates the Genetic Information Nondiscrimination Act. (Of course, you can request medical information -- though not genetic information -- after a conditional offer of employment has been made.)
3. If you use a third party to gather background information, provide standalone notification to the applicant in writing, and get the applicant's consent in writing.
4. If you want an "investigative report" that includes personal interviews based on a person's "character, general reputation, personal characteristics, and lifestyle, provide written notice to the applicant of his or her right to information about "the nature and scope of the investigation."
Please high-tail it over to HR Examiner for the March Employment Law Blog Carnival, entitled ELBC Walks Into a Bar. The blog posts (including one of mine) are awesome, but the jokes are even better! Thanks to Heather Bussing for hosting, and to Eric Meyer for organizing!
5. Provide a certification to the background agency that you gave the required notifications to the applicant, that you complied with the requirements of the Fair Credit Reporting Act, and you will not discriminate against an applicant or otherwise violate the law based on the information you gather.
6. When you get the info, treat everyone similarly situated the same way, without regard to race, sex, (etc.).
7. Watch out for "disparate impact" and reasonable accommodation issues -- for example, if your screening criteria exclude too many people of a certain race or nationality, or if a person can't comply with your criteria because of a disability. Your criteria may still be legitimate, but use caution and consider consulting with your employment counsel about how to achieve your business needs without making yourself vulnerable to claims of discrimination.
8. If you reject an applicant based on background information, and if the FCRA applies, be sure you comply with the FCRA notification requirements. (These are spelled out specifically in the joint guidance document.)
9. Keep the information for at least one year after it was gathered. (In some cases, you may have to keep it for two years' minimum.)
ROBIN'S TWO CENTS (NOT FROM THE EEOC/FTC WEB PAGE): If the applicant is hired, you should keep the information for the applicant's entire term of employment, plus a period as long as the longest applicable statute of limitations post-termination, which is a minimum of four years. Be sure to check applicable state laws, some of which have statutes of limitation as long as six years. Of course, if a rejected applicant or ex-employee files an EEOC charge or takes other legal action against the company, you would have to retain the information until the case reached its final conclusion -- either a dismissal and the expiration of all periods of appeal, OR a dismissal and the exhaustion of all appeals, OR a judgment against you that you do not intend to appeal, OR a settlement.
Since the Lilly Ledbetter Fair Pay Act was enacted in 2009, many employers have chosen to retain employment records indefinitely, and that is not a bad idea if you can do it. Goodyear Tire & Rubber and AT&T have been sued over employment decisions made many years earlier, and although they both won in the end, I'm sure some of their old records could have come in handy in their defense.
10. Whenever you do dispose of the information gathered, dispose of it securely. The FTC authorizes disposal by burning, pulverizing, or shredding in the case of paper records. In the case of electronic records, the records should be destroyed in such a way that they can't be "read or reconstructed." More information on secure destruction is available on the FTC website.
Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.
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