Chances are, if you’re applying for a job, you might run into a request for a background check. In fact, background checks may be required as a condition for employment in certain industries. 

When making a hiring decision, employers may want to do some fact checking before making an offer. This is usually done to help the employer avoid accusations of negligent hiring. Generally, the employer can ask the applicant in writing for permission to do a background check, which will include any information relevant to the position. 

If the applicant refuses or declines to undergo a background check, then the employer may refuse to consider the applicant for the job. However, this does not give employers a free pass to dig into all aspects of an applicant’s life.

Generally speaking, background check inquiries should stick to information that’s relevant to the position for which the employer is hiring, and be reasonable in their scope. For example, if you’re hiring for a security position that involves carrying a weapon and being responsible for clients’ valuables, then you might reasonably check for past criminal convictions. If the position is for a stock person at a supermarket, that criminal background check may be deemed unnecessary. 

Even if you do perform a background check, it’s probably unnecessary to dive into deep details about every possible issue that could arise. If you’re questioning the neighbors about the applicant for the stock person position at the supermarket, that is probably too far over the top.

What Kinds of Information is an Employer Restricted From Seeing When Conducting a Background Check?

There are certain categories of information that an employer must get consent from you in order to see. There are also certain types of information that either can’t be used to determine job eligibility or can only be used in certain specific circumstances.

When conducting a background check, your employer must get consent in order to see records that relate to the following:

  • Records of Military Service: Basic information like rank, salary, and awards do not require consent. However, anything more in-depth will require consent from the applicant.
  • School Records: There are federal and state laws that make school records confidential. Schools will generally not release a student’s records unless there is prior consent from the student. 
  • Credit Reports: Consent is required for an employer to obtain a copy of 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.
  • A Note About Bankruptcy: Under the Fair Credit Reporting Act (FCRA), consumer reports can not include records for bankruptcy proceedings that are more than ten years old. While employers are prohibited by law from discriminating against employees because of a bankruptcy proceeding, the same rules do not apply to applicants.

Records that cannot be used to determine eligibility (or can only be used under limited circumstances) include things like:

  • Driving Records: Background checks on an applicant’s driving record must be limited to situations where the position that is being filled requires significant driving (for example, long distance truck drivers or delivery persons).
  • Criminal Records: Whether an employer can seek information on the applicant’s criminal history (and even then, how far back can they go) is largely determined by the laws of the state where the employer is located. 
    • Some states prohibit employers from asking about arrests that did not lead to convictions, juvenile offenses, or sealed records. Some states only allow employers to consider criminal history for certain positions, such as nurses, childcare workers, private detectives, and jobs that require special licenses.
  • Worker Compensation Records: Employers may consider information in the public records about a worker’s compensation case only if the injury in question affects the applicant’s ability to do the position that they have applied for.
  • Medical Records: While employers may ask questions about your ability to perform a job, they cannot request or use medical records in determining whether an applicant is eligible for the job.

What If I Was Disqualified From a Job Due To Information the Employer Was Not Supposed to See?

The first thing to do is ask the employer why you were not hired for the position. In some cases, it may be perfectly innocent, and another candidate was better qualified or nailed the interview. However, if you ask this question and don’t get a satisfactory answer, then you may want to consider digging deeper into the situation if you can.

Should I Talk to a Lawyer If I Was Disqualified From a Job Due to a Background Check?

If you believe you have been disqualified from a job because of information the employer was not supposed to see in a background check, then you should consider talking to an experienced employment lawyer

Your lawyer can help you talk through the circumstances and advise you on your rights in the situation. The right lawyer can also help you decide on the appropriate way to move forward, and guide you when it comes to the best possible course of action.