Employers can run background checks.
However, anytime an individual’s background information is used to make an employment decision, state laws (that differ vastly, look at the bottom of your eMotive screen to see the link to "Jurisdictional laws") come into play, along with federal laws that protect applicants and employees from discrimination. Compliance includes making sure there is no discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). What does this mean? It means you cannot check criminal background for certain employees only, and everyone is entitled to be treated equally under the law. These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
Do note that while the EEOC has no direct relevance to the use of criminal records in employment-related decisions, it enforces Title VII of the Civil Rights Act, which is what prohibits employment discrimination based on race, color, religion, sex, or national origin. According to the EEOC, “Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.”
According to the Consumer Financial Protection Bureau (CFPB), which, along with the Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act (FCRA), “Background screening reports may include many types of information, including credit history, public records from civil court proceedings — such as bankruptcy filings and other court documents — and information related to employment history. They may also include other public record information on arrests and convictions of individuals.”
The FCRA stipulates guidelines for the inclusion and use of criminal history information. Why is all this relevant? When background checks are run by or through a company in the business of compiling background information, including and not limited to criminal background information, the FCRA needs to be complied with. According to federal guidelines under the FCRA, employee background checks are deemed “consumer reports.” The FCRA does not just regulate credit reports — it also incorporates criminal and civil records, civil lawsuits, educational and other reference checks, and any other information obtained by a consumer reporting agency. The FCRA regulates the collection and use of data obtained through these consumer reports and “promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.”
For instance, take what we do. Because Biometrica’s algorithms amalgamate real-time arrest or conviction data and make that data available to employers for the purposes of their creating pre- and post-employment criminal background reports, Biometrica has to strictly abide by the provisions of the FCRA.