Texas employers that cite background checks in their personnel decisions must comply with specific procedures and statutes. Employers will typically include background checks in their hiring, retention, and promotion policies to evaluate a person’s work, education, financial, and criminal history. Although background checks are an integral part of workforce development, employers must protect employee’s rights in the process. The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) enforce the standards put forth through the Fair Credit Reporting Act (FCRA) and federal protections.
The EEOC requires employers to treat their applicants and employees equally before they request or review their background information. Employers cannot discriminatorily select which applicants and employees they request information for based on a person’s protected class. Under the FCRA, employers must take additional steps before they request an applicant or employee’s background information. The FCRA requires employers to:
- Inform the person the employer might use the results of the background check to make an employment decision;
- Allow the person to receive a description of the nature and scope of any investigative reports;
- Obtain the person’s written permission to do the check; and
- Provide the reporting agency with a certification that the employer notified the applicant or employee of their rights.
The EEOC prohibits employers from discriminating against applicants and employees in violation of federal laws based on the background information they receive. Similarly, the FCRA prohibits employers from taking adverse actions based on the report unless they comply with specific requirements. Requirements include: providing the applicant or employee with the background check and “A Summary of Your Rights Under the Fair Credit Reporting Act” notice. If the employer takes an adverse action, they must notify the applicant or employee the action was taken because of information in the report. They must also provide the report as well as a verification that the reporting agency did not make the employment decision. Finally, the employer must notify the applicant or employee that they can dispute the report or get a report from a different company within 60 days.
The EEOC requires employers to retain the background check for one year after they received the reports or made the employment decision, whichever is later. There are additional requirements for certain employers. The FCRA allows employers to discard any reports when they choose, but it must be done so securely.
Has Your Texas Employer Unlawfully Discriminated Against You Based on a Background Check?
If you believe an employer impermissibly discriminated against you based on the results of your background check, you should contact the Dallas employment discrimination attorneys at Rob Wiley, P.C. Decisions based on illegal considerations or incorrect reports can have lifelong employment implications. Our attorneys can assist you in determining your rights and remedies. Contact our firm by calling 214-528-6500 to schedule a consultation.