Background checks can include obtaining information about the person's work history, criminal record, education, financial history or use of social media.

It is not illegal for the employer to ask questions about an applicant or employee's background or to require a background check. However, there are certain laws that an employer must comply with.

Employers cannot discriminate. For example, an employer cannot use an applicant's or employee's background information to make an employment decision that discriminates based upon race, color, national origin, sex, religion, disability, genetic information and/or age (40 years or older).

Employers must comply with the FCRA. In addition, if an employer runs background checks through a company that is in the business of compiling background information, the employer must comply with the Fair Credit Reporting Act (“FCRA”). The FCRA has numerous requirements, including telling the applicant or employee in writing that the information may be used for decisions about his or her employment.

The employer must also get the applicant's or employee's written permission to do the background check. The employer must also certify to the company performing the background check that the employer:

• Has notified the applicant or employee and received his or her permission to perform the check;
• Has complied with all of the FCRA requirements; and
• Will not discriminate against the applicant or employee or otherwise misuse the information in violation of federal or state equal opportunity laws.

Employee rights under FCRA. The FACR has additional requirements in situations where an employer takes adverse action based upon background information obtained through a company that compiles such information. Those include giving the applicant or employee a copy of the consumer report the employer relied on to make the decision, as well as a copy of a document entitled, “A Summary of Your Rights Under the FCRA.”

This gives the applicant or employee an opportunity to review the report and explain any negative information. After taking the adverse employment action, the employer must tell the applicant or employee the following, either orally, in writing (preferred) or electronically:

• That he or she has been rejected because of information in the report;
• The name and address of the company that sold the report;
• That the company selling the report did not make the hiring decision and cannot give specific reasons for it; and
• That he or she has a right to dispute the accuracy or completeness of the report and get an additional report from the reporting company within 60 days.

A background check can be a valuable tool in employer decision-making. It is important that employers understand and comply with laws surrounding the use of that tool. Additional information can be obtained from the U.S. Equal Employment Opportunity Commission website at www.eeoc.gov.

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Martin J. Boetcher is an employment lawyer in Youngstown, Ohio.