Conducting criminal background checks on job candidates is a common practice for employers but one that raises a host of compliance concerns amid a series of federal, state, and local laws and regulations governing how and when background checks may be conducted.
Ogletree Deakins’ recent survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, highlighted that background checks present one of the top five most challenging multi-jurisdictional compliance issues for employers. The survey further indicated that in today’s competitive labor market, more than 17 percent of employers have eliminated or relaxed background check requirements to address recruiting and hiring challenges.
Several recent developments are further complicating employers’ abilities to conduct criminal history inquiries and background checks on job applicants.
Disclosure Requirements
Background check disclosure is a key part of the federal Fair Credit Reporting Act (FCRA) and has become a hot area for class action claims. Before an employer runs a background check on an applicant, the employer must disclose to the applicant that the employer may obtain a background check or consumer credit report for employment purposes.
The FCRA imposes technical requirements for the exact language; adding too much information or not enough may give rise to liability. For instance, a 2022 California Court of Appeal ruling allowed a proposed FCRA class action alleging a legal...
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