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Hiring Practices and the FCPA
U.S. states, as well as municipalities such as New York City, have been proactive in recent years passing “ban-the-box” legislation that severely restricts the right of employers to check, much less consider, the credit and criminal histories of job applicants.
On the other hand, a number of federal laws, including the Foreign Corrupt Practices Act (FCPA), impose significant background check obligations. Regardless of local laws, FCPA-governed employers must carefully screen applicants to determine whether they are former foreign officials — which may include employees of state-owned enterprises — or if they have criminal records.
The laws that impose background check obligations are not limited to the FCPA. As discussed below, these obligations stem from an array of federal laws that regulate most publicly traded entities and many financial services companies. While these laws do not necessarily prohibit hiring individuals with criminal records or bad credit records or who are former government officials, they do require employers to identify these individuals and assess whether their hire would pose a threat, violate the laws outright or impose an administratively difficult burden due to the need to monitor their activities. Getting it wrong can be costly indeed.
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