Criminal Background Checks

Last week, the Federal Trade Commission entered into a consent order with two companies alleged to have operated as consumer reporting agencies, by providing criminal record reports through mobile applications, without complying with the Fair Credit Reporting Act (FCRA).  The consent order represents the FTC’s first FCRA case involving mobile applications. 

According to the FTC’s 

The Equal Employment Opportunity Commission has issued updated guidance concerning employer use of criminal histories.  As many as 92 percent of employers use criminal background checks as part of their hiring processes. 

The EEOC’s updated guidance generally provides that the EEOC will regard as suspect blanket or automatic exclusions of individuals from employment or promotion simply based on an individual’s criminal record, particularly when the individual is an African American or a Hispanic male.  However, the EEOC indicates that it will accept as a defense to a statutory discrimination claim an employer’s showing that the exclusion is job-related and consistent with business necessity and that the employer has made an individualized determination that hiring or promoting the individual in question would be likely to create a risk of improper conduct that would be detrimental to the employer’s business or workplace.  Specifically, the guidance indicates that, in making individualized assessments, employers should consider the following three factors:Continue Reading EEOC Issues Updated Guidance Regarding Employer Use of Criminal History; Considers Use of Social Networking Information