In January, the United Sates was given permission to intervene in a case that called into question the unconstitutionality of one of the provisions of the Fair Credit Reporting Act, specifically that of background check information and how it is utilized. A background checking firm contends that the sections which prohibit CRA’s from disclosing public information regarding an individual’s non-conviction criminal history that is more than seven years old is unconstitutional and that this background check information has value.
This case has huge implications for not only the companies that run background checks (CRA’s) and the background check information they may or may not be able to report depending on the outcome of this case, but also for employers. Depending on the outcome, this could also drastically alter the hiring landscape. The EEOC is very protective of the background check information that is allowed to be used by an employer in an employment decision. In some situations, however, there is information that would be useful depending on the situation that even the EEOC might be able to understand the need for its use. It is anticipated, however, that should the United States fail to defend its case in support of the FCRA, there will be even more rules and regulations put in place regarding the use of background check information in employment decisions.
The company in question is also contending that the government’s focus on privacy interests is overstated, as it is the government that allows public record information to be searchable online. With this in mind, they contend that any privacy interest, particularly related to background check information should be allowed to go beyond the seven year time frame currently recommended by the FCRA. There have been other cases that have challenged this, most recently in 2012.
For more information on this case from Seyfarth Shaw LLP, please click here.