Employment security

On the Law: Criminal background checks a legal minefield

Employers must comply with discrimination laws that protect applicants and employees from discrimination or retaliation based on age, gender, race, national origin, sex, religion or any of the other protected statuses, and they may not create different hiring criteria based on an applicant’s protected status. For example, an employer may not reject an applicant of one ethnicity with a criminal history, and then continue to consider applicants of other ethnicities with similar criminal histories.

Another federal law governing an employers’ use of credit and criminal background checks is the Fair Credit Reporting Act. This law is enforced by the Federal Trade Commission, and mandates certain steps that employers must follow before they conduct pre-employment background checks, including:

-- Provide an applicant with written notice that the background check may be used as part of the employer’s hiring decision.

-- Provide the applicant with a description of the nature and scope of the background investigation.

-- Obtain the applicant’s written authorization to conduct the background check.

-- Certify to any third party hired to conduct the background check that the employer has obtained the applicant’s signed consent, provided written notice, affirmatively complied with the FCRA’s requirements, and promise not to discriminate, misuse the information or violate any state or federal laws.