Federal Agency Offers Guidance to Employers on Legal Requirements for Pre-Hiring Background Checks

New York City is leading much of the nation in providing protection for workers against discrimination on the basis of criminal history, but federal law offers some protection as well. These protections are important for helping people reintegrate into society—particularly by finding jobs—once they have paid their debt to society. The federal Fair Credit Reporting Act (FCRA) protects job applicants’ privacy with regard to background checks by employers. While the FCRA does not limit employers’ ability to consider information obtained in a background check, it requires them to notify an applicant of an adverse decision based on a consumer report and to allow the applicant an opportunity to correct any inaccurate or incomplete information. The Federal Trade Commission (FTC) recently offered guidance to employers about their obligations under the FCRA, which prospective employees might also find useful.

The New York City Human Rights Law (NYCHRL) requires employers to follow specific procedures during the hiring process with regard to an applicant’s prior convictions. An employer may not inquire about criminal history until it has made a conditional offer of employment, and then it must follow various disclosure requirements if it makes an adverse decision because of an applicant’s criminal history. See N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq.

Under the FCRA, a “consumer report” is a collection of information about an individual that relates not only to factors like their credit history but also to their “character, general reputation, [or], personal characteristics.” 15 U.S.C. § 1681a(d). This can include criminal convictions, charges that did not lead to convictions, and arrests that did not lead to charges. The FCRA requires consumer reporting agencies, which compile and distribute consumer reports, to correct inaccurate information. It also imposes restrictions and obligations on people and businesses that request consumer reports, including employers.

An employer that requests a job applicant’s consumer report has duties under the FCRA both before and after obtaining the report. First, they must get the applicant’s consent, in writing, to obtain a report, along with a written disclosure “in a document that consists solely of the disclosure,” explaining the purpose of the report. Id. at § 1681b(b)(2). If, after receiving the report, they make an adverse hiring decision because of information in the report, they must notify the applicant and provide them with a copy of the report and a written statement of their rights. Id. at § 1681b(b)(3). Perhaps most importantly, they must give the applicant a reasonable amount of time to review the report and to exercise their right to have inaccurate or incomplete information corrected.

A blog post published on the FTC’s website offers guidelines for employers, which can also serve as warning signs for job applicants. For example, the FTC warns employers not to include certain language in the required disclosure:

– Release of liability in connection with the acquisition and use of a consumer report;
– Acknowledgment that all decisions regarding hiring “are based on legitimate non-discriminatory reasons”; and
– Certification by a job applicant—before the issuance of a report—that “all information in his or her job application is accurate.”

Language such as this is inconsistent with an employer’s obligations under the FCRA.

The criminal conviction discrimination lawyers at Phillips & Associates advocate on behalf of New York City job applicants and employees in claims of criminal history discrimination and other violations of city, state, and federal laws. To schedule a free and confidential consultation to discuss your case with a member of our knowledgeable and skilled team, contact us today online or at (212) 248-7431.

More Blog Posts:

State Legislature Adds Juvenile Records to Prohibition on Criminal History Discrimination in Employment, New York Employment Attorney Blog, April 4, 2017

New State Law Bars Employers from Considering Juvenile Records, New York Employment Attorney Blog, January 19, 2017

Study Examines How “Ban the Box” Laws Might Affect Race Discrimination in Employment, New York Employment Attorney Blog, September 28, 2016


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