My wife and I are currently binge-watching Little Fires Everywhere, a Hulu miniseries based on a book of the same name. Set in Shaker Heights, Ohio, during the late 1990s, Fires stars Reese Witherspoon as Elena Richardson (a white, married, upper-middle-class newspaper reporter with four children) and Kerry Washington as Mia Warren (a black, single mother who works as an artist and supplements her income through other part-time jobs).
Early in the series, Elena hires Mia to work in her home and rents an apartment to her. Based on concerns arising from a reference check from someone Mia claims to be a former landlord, Elena asks a friend in the police department to conduct a criminal background check on Mia (Elena misleadingly claims that the background check is for a newspaper story).
As an employment attorney, my eyebrows were raised by Elena's actions, as obtaining and using background checks and criminal history in the employment context are strictly regulated by federal, state, and even local laws.
Background Checks and the FCRA
Generally, employee background checks are covered by the federal Fair Credit and Reporting Act (FCRA). As noted by the Federal Trade Commission (FTC), the FCRA "protects information collected by consumer reporting agencies such as credit bureaus, medical information[,] and tenant screening services."
The FCRA has certain procedural requirements that must be met before obtaining information from companies that provide background reports, which the U.S. Equal Employment Opportunity Commission (EEOC) describes as follows:
- Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can't be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports) but only if it doesn't confuse or detract from the notice.
- If you are asking a company to provide an "investigative report"—a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle—you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
- Get the applicant's or employee's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly and conspicuously.
- Certify to the company from which you
are getting the report that you:
- Notified the applicant and got his or her permission to get a background report;
- Complied with all of the FCRA requirements; and
- Won't discriminate against the applicant or employee or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.
In addition, to the extent that a background report is used to make an adverse employment action (for example, refusal to hire), employers must take the following steps (again, as summarized by the EEOC):
- Before you take an adverse employment
action, you must give the applicant or employee:
- A notice that includes a copy of the consumer report you relied on to make your decision; and
- A copy of "A Summary of Your Rights Under the Fair Credit Reporting Act," which you should have received from the company that sold you the report.
By giving the person the notice in advance, he or she has an opportunity to review the report and explain any negative information.
- After you take an adverse employment
action, you must tell the applicant or employee (orally, in
writing, or electronically):
- That he or she was rejected because of information in the report;
- The name, address, and phone number of the company that sold the report;
- That the company selling the report didn't make the hiring decision and can't give specific reasons for it; and
- That he or she has a right to dispute the accuracy or completeness of the report and to get an additional free report from the reporting company within 60 days.
Apart from the FCRA, several states and localities have also enacted so-called "ban the box" laws addressing the use of someone's criminal background information in the employment context.
For example, California's Fair Chance Act—with certain exceptions—prohibits employers from inquiring about an applicant's conviction information before making a job offer. Other California localities—including San Francisco County and the city of Los Angeles—also have laws "banning the box."
Ironically, while Elena was concerned that Mia had a criminal past, it may have been Elena who violated the law by requesting an unauthorized criminal background check on Mia. However, the analysis is not that straightforward. For example, Mia could argue that the FCRA only applies to background information requested from companies that provide reports concerning consumer criminal, credit, and other history. Further, even assuming that Fires took place in present-day California, the Fair Chance Act only applies to employers with at least five employees.
Originally published 7 May, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.