Already this year, Walmart faces a class-action lawsuit over claims that it didn’t clearly alert job seekers about planned background checks; a California federal judge in mid-January certified a class of 5 million job applicants. And in early January, Delta Air Lines agreed to shell out $2.3 million to settle a class-action lawsuit over similar claims, also filed in California.

Last year, Frito-Lay, Omnicare, and Pepsico likewise settled background check disclosure form lawsuits for amounts that stretched into the millions of dollars.

Job hunters may feel at the mercy of whatever requests a potential employer may make, but as these cases prove, the law provides very real protections — both in terms of candidates’ privacy and of how employers may use background checks when making a hiring decision.

However, you must know your rights in order to protect yourself. Here’s a basic overview; we offer free consultations if you think your rights have been violated.

Hiring rules

When employers make personnel decisions — whether hiring, retention, promotion or reassignment — they may evaluate a person’s background. That can include work history, education, criminal record, financial history, medical history, or social media use. Doing so, or requiring a background check, is legal, except for restrictions about certain medical and genetic information.

As you probably know, federal laws (enforced by the Equal Employment Opportunity Commission) prohibit discrimination against or different treatment of applicants or employees based on race, color, national origin, sex, religion, disability, genetic information, or age (40 or older).

But the cases we mentioned above deal with violations of the Fair Credit Reporting Act (enforced by the Federal Trade Commission), which provides more nuanced protections. It requires employers to handle credit, criminal or other background reports in specific ways.

Before a background check

Employers must be straightforward with individuals when it comes to background checks. Applicants or employees must be told — via standalone written notice, rather than buried in an employment application — that this information may be used for employment decisions. Some minor additional information may be included, but only if it isn’t confusing.

Other FCRA protections include:

• Applicants or employees must be told that they have a right to know the nature and scope of any required investigative reports that will be based on personal interviews about their character, general reputation, personal characteristics and lifestyle.
• Before conducting a background check, employers must obtain written permission. If this permission will apply throughout the person’s employment, that must be clear.
• Employers must certify to the company providing the report that the applicant gave permission for the background check, that FCRA requirements have been met, and that the information won’t be used to discriminate or otherwise violate laws.

After a background check

If the background information prompts the employer to want to turn away an applicant or to fire an employee, before doing so the employer must:

• Give the individual a notice that includes a copy of the report on which the decision is based.
• Provide a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

This gives the person a chance to explain any negative information.

Then, if an employer still decides against working with the person, the employer must tell the person — orally, in writing, or electronically — that the rejection was based on the report. The person must be given the name and contact information of the company that provided the report, and be told that the investigating company didn’t make the hiring decision and that the individual can dispute the report and get another one free from that company within 60 days.

The law then has requirements for how long records must be kept and for disposing of them securely.

In addition to federal laws, states and municipalities may have their own protections for workers. In recent years, ban-the-box initiatives have attempted to help those with criminal records gain fair evaluation in the hiring process.

If you suspect that an employer or potential employer has violated these protections, contact Keller Grover for a free consultation. We can help you understand your options and steps you should take. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.