Generally, an employer may conduct a background check on any information that is relevant to the job for which the employer is hiring. This is usually done to help the employer avoid negligent hiring lawsuits. To be safe, an employer can ask the applicant in writing for permission to do a background check. The employer will want to include all the details of what matters are going to be checked. If the applicant then refuses to have the check done, the employer may refuse to consider the applicant for the job without being at risk of liability for discrimination.
What Kinds of Information Is an Employer Restricted from Seeing When Conducting a Background Check?
There are certain kinds of information that an employer must get consent from the applicant in order to see:
- Records of military service - Consent is required for the employer to obtain the applicant's service records. Information such as rank, salary, and awards does not require consent.
- School records - School records are considered confidential by federal laws and some state laws, and schools will generally not release a student's record to anyone unless there is prior consent by the student.
- Credit reports - Consent is required for an employer to obtain an applicant's credit report. If the application is denied because of a negative credit report the employer must notify the applicant of the reason for the denial.
There are other kinds of information that either cannot be used to determine an applicant's eligibility for a job, or can only be used for that determination under limited circumstances:
- Driving records - Doing a background check on an applicant's driving records must be limited to circumstances where the position requires significant driving.
- Criminal records - Whether an employer can seek information about the criminal history of the applicant depends on the laws the state where the employer is located.
- Worker compensation records - Employers may only use this information if the injury in question affects the applicant's ability to perform the duties of the position the employer is filling.
- Other medical records - An employer cannot request or use the applicant's other medical records when determining if the applicant is eligible for the job.
If I Think I Was Disqualified from a Job by Information That My Employer Was Not Supposed to Use to Evaluate Me, What Should I Do?
First, you should ask the employer why you were not hired you for the position. If you receive an unsatisfactory answer, you may want to consult an employment lawyer. An experienced employment attorney can advise you of your rights and the appropriate course of action to take.