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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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The EEOC and the FTC Publish Documents Related to Background Checks

The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) have a common interest in educating employers, applicants and employees about the use of background checks in the employment context. The EEOC enforces federal laws against employment discrimination and the FTC enforces the Fair Credit Reporting Act (FCRA), which protects privacy and accuracy of information in credit reports. Typically, employers who conduct background checks include credit reports as part of their due diligence. The agencies partnered to create to instructive documents: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.

Background Checks: What Employers Need to Know

In this document the agencies point out that conducting background checks is not illegal, but that in doing so an employer must be sure that it does not illegally discriminate on the basis of race, color, national origin, sex, religion, disability, genetic information (including family medical history); and age.

It further outlines the procedural requirements under the FCRA; how to use the information without running afoul of federal law (e.g., apply standards consistently and uniformly); and how to comply with recordkeeping requirements related to such information.

Background Checks: What Job Applicants and Employees Should Know

Applicants and employees are told in this document that an employer may conduct background checks and the various ways in which such investigations are conducted (i.e., using a third party). It sets forth the rules regarding employee / applicant consent, an employer’s obligation to provide a copy of a report used to make an adverse employment decision, and how to contact the EEOC to report alleged discrimination.

As we have reported in previous blog posts, the EEOC has sued several employers for alleged discrimination resulting from background check practices. If you conduct background checks as part of your hiring processes, please contact a member of Verrill Dana’s Labor & Employment group to ensure your process will withstand scrutiny.

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