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In short, a lot. There’s the Fair Credit Reporting Act, Title 7, dozens of state laws, and even more municipal laws. And no, not all laws are created equal. Some of the laws talk about where to dot an ‘i’, cross a ‘t’, or put a box while others narrowly define the types of checks that can be conducted and what information from the public record system can be displayed in a background check report. So what does a human resource or risk manager, who doesn’t regularly practice law, need to know to navigate these laws? First, you need to know that the laws exist. Here’s some to get you started.
The Fair Credit Reporting Act, or FCRA, is a federal law that governs how employers and third parties, like a background check vendor, can collect, assemble, and report information on individuals. To complicate things, there are dozens of states that have enacted a similar versions to FCRA sections, and imposed their own unique limitations and restrictions on reporting results. Title 7, the anti-discrimination law enacted in the 60’s, can apply to background checks too. The EEOC is enforcing Title 7 to make sure employers are carefully reviewing background check results to not eliminate opportunities for employment based on race. Then there is “ban the box.” Ban the box are state and local laws that prohibit employers asking applicants if they’ve been convicted of a crime. Almost half the states have enacted a version of this and over 100 municipalities and cities too.
According to the most recent survey from the Society of Human Resource Management, three out of four employers run a criminal background check on all of their applicants. Employers run employee background checks in order to help keep the workplace safe, defend against theft as well as protect themselves from hiring suits. While background checks are a good safeguard to protect people, property, and reputation, hiring and risk managers need to ensure they know what laws apply for background checks so that they don’t become a victim of their own devices.Tweet