In today's competitive employment arena, it is extremely important for an employer to hire the best and brightest employees to make the business successful. A major part of finding out exactly who the best and brightest are often involves conducting an investigative background check. Employers will scour all sources to find out about a potential hire. This may include reviewing social media posts (FaceBook, Twitter, Instagram), Google searches, and any number of other avenues where public information may be available that sheds light on a potential employee and his or her lifestyle. Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about a potential employee's background or to require a background check as part of the pre-employment process. However, employers need to be very careful when conducting background checks so as not to run afoul of federal laws designed to prevent discrimination. In addition, Illinois has its own strict guidelines on conducting employee background checks. And if that's not enough, employers that conduct background checks (for example, credit or criminal background reports) must also comply with the Fair Credit Reporting Act. Briefly set out below are steps all employers should be aware of when making the decision to conduct any type of background check on a potential new hire:
The EEOC and the FTC
The Equal Employment Opportunities Commission (EEOC) enforces laws designed to ensure that potential employees are not subject to discrimination based on their age, race, sex, national origin, disability, veteran's status and genetic information. The Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act (FCRA).
For purposes of complying with the EEOC guidelines on background checks, make certain you are treating everyone similarly. It is illegal to check on a person's background based on their age or race for example. You may not ask individuals of a certain race only about their prior financial histories or criminal background and ignore these inquiries for people of other races or age. Further, you may not ask about a person's genetic information, which may include family history of certain diseases. Very importantly, you may not ask any medical questions at all until a conditional job offer has been extended. The information about medical history must be relevant and directly related to the person's ability to perform the essential functions of the job at hand. An employer may not use a policy or practice that significantly disadvantages individuals of a particular race or national origin and does not accurately predict who will be a safe, reliable employee.
If an employer tries to get background information (credit or criminal background report) from a company in the business of compiling background information, there are additional requirements that must be complied with in order to stay within the boundaries of the FCRA. An employer must tell the applicant or employee that you might use any information obtained for decisions regarding his or her employment. If you are asking a company to provide an "investigative report", a report based on personal interviews, you must also disclose to the applicant or employee of his or her right to a description of the nature and scope of the investigative report. An employer must also get the applicant or employee's consent to perform the investigative report. Finally, you must inform the applicant or employee that they have a right to review any information obtained as part of a credit or criminal history report. Before an employer can take any adverse action based on an investigative background check, the employer must give the applicant a notice that includes a copy of the investigative report as well as a copy of the applicant's rights under the FCRA. If adverse action is taken as a result of an investigative report, the applicant must be provided a notice that he or she was rejected based on information contained in the report; the name and address of the company that provided the report; and that the applicant has the right to dispute the accuracy or completeness of the report.
State of Illinois Requirements
Illinois has its own set of guidelines in addition to those set out by the EEOC or FTC. Under the Employee Credit Privacy Act, effective in 2011, an employer is prohibited from inquiring about an applicant's credit history as a part of the pre-employment screening process. Nor can an employer use a credit report or history to affect decisions relating to discharging an employee or addressing compensation issues. There are certain carve outs under the law. An employer may still use credit checks in limited circumstances for positions: (a) which involve bonding or security under either state or federal law; or (b) have unsupervised access to more than $2,500.00; or (c) have signature authority over business assets of more than $100.00; or (d) have management and/or control over a business; or (e) have access to confidential information, trade secrets, or state or national security information.
How Long Must You Keep a Background Report?
The EEOC requires that any personnel or employment related records (including all applications, regardless of whether the individual was hired or not) must be preserved for at least one year after the record was made or after a personnel action was taken, whichever comes later. For purposes of complying with the FRCA, you may immediately dispose of any investigative or credit or criminal background report as long as the information is destroyed securely (i.e burned, pulverized or shredded in a manner that precludes reassembly.) However, given the EEOC mandate to maintain these records for at least one year, employers should be cautioned to follow the EEOC guideline instead of immediately destroying these records.
Attorneys Who Care About Their Clients
At Bellas & Wachowski our focus is always on achieving the best results for our clients. We have developed many innovative methods to provide our clients with added protection. For example, in our personal injury work, we take a unique Total Guard Approach that ensures clients' finances will be protected during litigation. And in our business law section, we offer a Corporate Maintenance Plan that helps maintain a business's corporate standing.
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