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BT Currents - Hot Topics in Employment Law

20 Sep New FCRA Form for Pre-Employment Background Checks Starts Sept. 21

Employers who routinely use third party credit reporting agencies for pre-employment background screening have a new requirement due to recent changes to the Fair Credit Reporting Act (FCRA). Starting September 21, 2018, employers that use background checks must notify job applicants and employees of their rights under the FCRA using a new “Summary of Consumer Rights” form. Failure to provide the correct notification can expose employers to legal risk, including class action litigation. The primary change to the form relates to disclosures regarding the consumer’s…

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31 Jul Survey Says: Almost All Employers Use Background Checks (and Other Notes on Pre-Employment Testing)

    As we sometimes do, we turn our attention to one of the monthly surveys from the Ohio-based Employers Resource Association (ERA). This survey focuses on a number of interesting questions about hiring trends as practices, such as who interviews applicants (24 percent of respondents have peers interview applicants) and what resources are used to find candidates (not surprisingly, online job boards leads at 89 percent).   More on the employment law side, I thought the question showing what percent of employers use various kinds…

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14 Sep Rollercoaster Week for EEOC Regarding Background Checks

Last week started poorly for the agency often criticized as overly aggressive, as a federal judge in Maryland ordered the EEOC to pay attorneys’ fees of nearly a million dollars for overplaying its hand. In EEOC v. Freeman, the agency sued a corporate events company for its background check policies, charging that those checks had a disparate impact on minorities. The problem arose when the EEOC brazenly pushed ahead with its case even after its alleged statistics expert’s report was thoroughly debunked by Fourth Circuit…

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25 Feb Choose Your Expert Wisely: Fourth Circuit Rejects EEOC’s Choice on Background Checks

Fans of the Indiana Jones series will remember the scene near the end of the Last Crusade where our hero is looking over a multitude of chalices to select the one true grail, and the ancient knight beside him warns: “Choose wisely.” When the bad guy pushes his way forward to pick out a pretty – but ultimately incorrect – cup, we find out the grisly consequences of choosing poorly. The knight’s admonition to “choose wisely” not only is good advice for selecting grails, but…

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13 Mar EEOC and FTC Team up to Offer Guidance on Employee Background Checks

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Fair Trade Commission (“FTC,” the commission responsible for enforcing the Fair Credit Reporting Act) have co-published two technical assistance publications – one aimed at employers and one aimed at employees and applicants – explaining how their rules apply to background checks used for hiring, retention, promotion, or reassignment purposes.   The EEOC confirmed that it is legal to ask questions about an applicant’s background as long as the questions do not discriminate on the basis of…

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