Use of Arrest Records in Employee and Volunteer Screening – Are You Compliant?
Jun 25, 2018
The Fair Credit Reporting Act, ("FCRA") is a Federal Government statute. It was enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of Consumer Reporting Agencies (CRAs), such as Reliable Background Screening. FCRA protects individuals being screened from the willful and/or negligent inclusion of inaccurate information in a CRA's report.
When the purpose is to vet an individual for employment or volunteering – whether they be an applicant or an incumbent – the FCRA imposes its most stringent requirements. To that end, the FCRA regulates the collection, dissemination, and use of consumer information in consumer reports – whether or not an actual credit report has been requested.
In addition, there are stringent 'guidance principles,' rules and regulations promulgated by Federal and/or state agencies seeking to prohibit workplace discrimination:
- One example is the "guidance documents" of the U.S. Equal Employment Opportunity Commission (EEOC) – note that they are just guidance
- However, just because the EEOC does not promulgate regulations for the use of arrest records, does not mean there are no laws – many states and other jurisdictions have passed legislation that limits or outright bans access to and use of arrest histories for employment and volunteer vetting decisions.
Reliable's advice for the possession and/or use of arrest/booking information for employment purposes is: BE CAREFUL AND CHECK WITH YOUR ATTORNEYS! Background screening companies that employ industry Best Practices, such as Reliable, generally do not include arrest information in their employment/volunteer background check reports. This is the case since it may not be wise to even have arrest/booking information – let alone using them to make on-boarding or retention decisions.
The bottom line: Should a CRA offer to provide your organization with arrest/booking information from many jurisdictions:
- They could be violating the law by even having the records
- You could be violating the law when the employer is prohibited from requesting such information.
The entire question regarding the possession and use of arrest/booking records is complex and varies by jurisdiction. Penalties can be quite onerous and may also lead to civil lawsuits involving discrimination. Proceed carefully and review the situation with counsel should you be offered arrest/booking data.
Posted by: Rudy Troisi, L.P.I., President and CEO, Reliable Background Screening
Joel M Kushnir, Ph.D., Vice President, Government and Enterprise Practice
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