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What Employers Need to Know about Background Checks

background check picWhen an employer is hiring, promoting or reassigning an employee, it may be important to consider the background of the applicant or employee. A background check can inform you of their education, work history, financial record, criminal history, and many other matters. Employers are not allowed to ask certain questions regarding medical and genetic information, but conducting a background check is permissible.

It is imperative that an employer comply with federal and state laws in how the background information is obtained as well as how the information is used. Employees must be protected from discrimination based on color, race, sex, religion, national origin, disability, age and genetic information (such as family medical history). Additionally, when an employer uses a company that specializes in conducting background checks, the Fair Credit Reporting Act (FCRA) must also be complied with.

Prior to obtaining an individual’s background information, an employer must ensure that everyone is being treated equally. In other words, you cannot conduct background checks on some applicants or employees and not others. This is particularly true if this decision is based upon discriminatory factors.

An employer must be careful in discussing medical matters with applicants and employees. As a general rule, you should never use medical history or genetic information as the basis for an employment decision. You should avoid discussing medical matters with an applicant and only ask medical questions of employees if you have objective evidence that the employee is unable to do the job or presents a safety risk due to the medical condition.

If an employer obtains a background check from a company that specializes in compiling such information, there are also FCRA considerations such as:

  • You must get the employee’s written permission for you to do the background check.
  • You must inform the applicant or employee that the information obtained in the background check may be used in making decisions about his or her employment. This notice must be given in writing as a stand-alone notification.
  • If you are requesting an “investigative report” that will include personal interviews regarding the individual’s character or reputation, you must inform the applicant or employee of their right to a description of the nature and scope of the investigation.

If you have questions regarding background checks or any other employment law matter, contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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