By Pamela Quigley Devata, Paul Kehoe, and Craig B. Simonsen

The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have just announced two short guides on employment background checks: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  The documents were not subject to Commissioner review and approval prior to publication.

Jessica Rich, the Director of the FTC’s Bureau of Consumer Protection, indicated that the “FTC is pleased to work with the EEOC to help ensure that employers and potential employees have a solid understanding of their rights and responsibilities.”

Overall, the FTC and the EEOC want employers to know a couple of things.  First, that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Second, that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

The guides provide high-level, bullet point summaries of various laws, including Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act (FCRA), to alert employers of their duties and employees of their rights regarding criminal background checks.  Unfortunately, the guides’ vagueness provides very little practical help to employers attempting to comply with the law and almost no advice to employees or applicants beyond the recommendations to contact the EEOC or FTC with any possible complaints.  For example, both guides state that everyone must be treated the same.  Yet, the next bullet point essentially directs employers to treat everyone differently (on a case-by-case basis), as suggested in the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records issued in 2012.  While there are obvious differences between the disparate treatment and disparate impact theories of discrimination, many people without an employment law background could be further confused by the guides.

Both guides also present a limited view of what could be job-related and consistent with business necessity, i.e., a criminal background check that “accurately predict[s] who will be a responsible, reliable, or safe employee.”

Finally, statements in both guides make it appear as if the EEOC is modifying its position on conduct-related disqualifications for individuals with disabilities by suggesting that employers “[b]e prepared to make exceptions for problems revealed during a background check that were caused by a disability.”  That position seems to overstate the EEOC’s position related to conduct-related issues set forth in its Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act Enforcement Guidance issued in 2002.

Employers may wish to look closely at these two new publications, with the understanding that the documents, in and of themselves, provide little guidance on how an employer may comply with Title VII when considering criminal backgrounds.  The guide for employers does provide a good review of an employer’s obligations under the FCRA and a snapshot of additional obligations under the ADA, the Genetic Information Nondiscrimination Act of 2008 (GINA), and Title VII’s recordkeeping requirements.  However, it is important for employers to recognize that each of these areas of the law are nuanced and not conducive to a mere bullet point analysis.

At the very least, the publications illustrate that two federal government agencies are working together on the issue of employment background checks and that current employees and future applicants may have more questions about their legal “rights.”  Employers conducting background checks should be sure to evaluate their policies and processes in light of these publications and also train their Human Resources professionals on these laws.

For more information on employers responsibilities under the FCRA or use of criminal background screening in employment, please contact your favorite Seyfarth attorney.