It’s hard to believe, but the long, hot summer is coming to an end. With that, let’s cover a few basics about background screening or, as we like to call it – our latest edition of “Background Screening 101.”
What’s the law? Specifically, federal law does not restrict background checks of applicants and employees as long as the employer conducts the check directly rather than through a third party. When an employer uses a third-party vendor such as GroupOne Background Screening, the process is governed by the Fair Credit Reporting Act (FCRA).
The FCRA does not prohibit an employer from hiring a vendor to conduct background checks or from taking action based on the results, but it does require the employer to first provide notice and obtain permission from the applicant or employee. The FCRA also requires that notice be provided before any adverse employment action can be taken based on the information. It also requires that applicants or employees be allowed to correct or explain any negative information discovered.
In addition, the FCRA requires employers to maintain the confidentiality of all background check information, with limits on how the info can be used. It’s also important to note different states have different laws. For example, California and New York have their own laws governing the use of background checks.
Effective since 2021, the federal Fair Chance Act prohibits federal contractors from asking applicants about criminal histories until after the contractor extends an offer. The Fair Chance Act also prohibits employers from seeking an applicant’s criminal history from other sources.
In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding when it’s appropriate to use background check information relating to an applicant’s criminal history. The EEOC’s guidelines state employers should use caution before excluding individuals based on criminal history, and asks employers to avoid blanket exclusions unless there is a link between the job and the crime committed. Certain states have enacted additional legislation limiting the ability to inquire about criminal records.
The Americans with Disabilities Act (ADA) prohibits employers from conducting medical examinations or making pre-employment inquiries to determine if an applicant has a disability. Under ADA, employers may require applicants to submit to post-offer exams, which may be administered after the applicant has received an offer but before the start of employment. Employers may condition offers based on the results of the examination if these conditions are met:
- • All employees in the same position are subjected to the same examinations whether or not they have a disability;
• The information obtained is maintained on separate forms and in separate medical files treated as confidential;
• Results are used only under the provisions of ADA, and if people with disabilities are excluded from the position based on the examination, the examination is job-related and consistent with business necessity.
State laws may provide additional restrictions on pre-employment medical and physical examinations of applicants.
Drug and alcohol testing
Pre-employment drug and alcohol testing is lawful under federal and state law when:
- • Testing is required by law (U.S. Department of Transportation requirements) or is part of a pre-employment medical examination required of every applicant for the same position;
• An applicant has advance notice and consents to testing;
• Testing is conducted under conditions that minimizes intrusiveness (an applicant has privacy while furnishing a sample);
• No medical information is reported other than the pass or no-pass result.
As mentioned with earlier topics, drug and alcohol testing are also a subject of state law, which can vary widely from state to state. Always, always consult legal counsel.
Please do not hesitate to contact GroupOne should you have questions. And with that, have a happy Labor Day weekend!
The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.