Regulations for Employers Conducting Background Screenings Protect Job Seekers

When undergoing the background screening process for prospective employment, job candidates may be apprehensive about a variety of aspects. They may also have a lot of questions about their legal rights and how employers (past, present, and future) are allowed to handle an applicant’s information. Luckily, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have set up protections regarding how employment background checks are to be conducted and how employers are allowed to use a person’s information.

In general, employers can ask just about anything regarding a job candidate’s history. The most common screenings employers perform include:

  • Employment history (salary, dates of employment, job title, performance reviews)
  • Education (degree obtained, dates of enrollment, GPA)
  • Criminal background
  • Financial background
  • Medical information
  • Social media

Financial background, medical information, and social media are less common for employers to screen. Employers usually only conduct credit checks if an employee’s job duties require fiscal stewardship. The release of medical information to employers has strict regulations (it is illegal for an employer to request genetic information or family history, and most employers cannot ask for any medical information until a job has been offered to the candidate).

Researching an employee’s social media has become a controversial subject because the EEOC has placed legal protections on the following attributes (employers cannot make employment decisions based on any of these criteria):

  • Race
  • National origin
  • Color
  • Sex
  • Religion
  • Disability
  • Genetic information
  • Age

An individual’s social media may disclose information about one of the aforementioned categories, and some argue that exposure to such social media creates employment bias that the traditional job application process does not. It is important to remember that employers require written consent for the majority of background checks, particularly if they are performed by a third-party firm.

While the law may protect a job applicant from certain types of discrimination, it does not regulate what a previous employer can disclose to a potential employer. Some companies have policies that regulate what employers can say about their employees, but the law will not necessarily levy criminal punishment for breaking company policy. However, if former employers lie about an employee’s performance to affect a hiring decision with another company, they may face job losses and/or lawsuits. Job candidates are always entitled to a full report in the event that items in their background checks affect their ability to obtain employment.

The best course of action in the background screening process, for employers and employees alike, is to practice honest communication and maintain a stand-up level of integrity when on and off the job.

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