Unfortunately, there is no clear answer.
The Federal Trade Commission (FTC) in its most recent staff report (in 2011) states that “employment purpose” is interpreted broadly and may apply to situations where individuals are not technically employees. Reports on consumers who are clearly not employees under traditional common law principles can nevertheless be construed as consumer reports for employment purposes.
It is up to the employer to determine the purpose of the background check based on its particular facts and circumstances. Some points to consider include:
1) Is the individual free from control and direction in connection with the performance of the service?
2) Is the service performed outside of the usual course of business of the employer?
3) Is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed?
If the answer is “yes,” then most likely a report on the individual would not be under the FCRA’s employment purpose.
While a few recent district court decisions have held that the FCRA employment purpose does not apply to contractors, the FTC has not budged on its stance that employees and nontraditional workers alike are protected under the FCRA.
Where there are gray areas, the conservative approach is to follow the employment purpose requirements but modify disclosure and authorization forms and other documents to reflect an independent contractor status.
