When appropriately used, background checks can be a powerful tool in making employment decisions. However, an employer that wants to obtain background checks from a consumer reporting agency must be cognizant of a number of laws that can limit when it may obtain a background check and how it may use the information revealed by that background check. Employers must also provide various disclosures and notices prior to obtaining a background check or taking an adverse action as a result. Employers should be cautious about taking an adverse action based on applicant conviction records. State law and local ordinances may prohibit or limit adverse action against an applicant/employee based on conviction record. Even if there is no applicable law prohibiting adverse action based on conviction record, employers should avoid blanket policies that preclude employment of anyone with a conviction. Because some races have higher conviction rates than others, such policies may disparately impact certain races in violation of Title VII. Employers should thus make an individualized assessment of each applicant’s conviction as well as how that conviction relates to the position at issue.
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