When an employer makes any sort of personnel decision, they are legally allowed to find out more about a person by conducting a background check. A background check can show a person’s education, work history, financial history, and criminal record. The purpose of a background check is to ensure that there will not be any legal issues upon hiring a candidate, such as negligent hiring or negligent supervision.

Negligent hiring refers to hiring a person who was dangerous, and the person responsible for hiring them knew or should have known such information. Conducting a legal background check is one way employers avoid this.

Background checks may be a prerequisite for being hired in some industries. In general, employers may ask job applicants in writing for permission to run a background check. This would include any information relevant to the position. Some specific examples of what information a background check could provide includes:

  • Whether the job candidate has a criminal record;
  • If the person does have a criminal record, when the charges happened and the nature of the crime committed;
  • If the person is authorized to work within the United States;
  • Credit history and other financial information;
  • Information involving previous military history; and
  • Other information such as immigration status.

If the job applicant does not consent to the background check, the employer is allowed to refuse to consider the applicant for the position. However, background checks do not grant the employer the right to investigate every aspect of an employee or candidate’s life. Background check inquiries should only involve relevant information for the position. Although generally legal, background checks can become illegal when they violate employment laws and fail to follow specific guidelines.

Guidelines for Avoiding Illegal Background Checks

There are several guidelines for employers to follow in order to avoid conducting an illegal background check. Some of those guidelines include:

  • Obtain Written Consent: As previously mentioned, in order for an employee background check to be legal, the employer must obtain the employee or job candidate’s consent prior to running the check. Written consent is also required to check a person’s educational information, such as school transcripts. Employers cannot force an applicant to provide consent, although they can refuse to hire a person who refuses to consent to a background check;
  • Ensure That the Background Check is Job Related: Background checks can be especially necessary for positions that involve handling personal or financial information.Some questions about a job applicant’s information may be asked outright, while other information needs to be obtained through a background check. It is important that any information that an employer is trying to obtain is actually related to the job.
    • An example of this would be checking a person’s criminal history if they are being considered for a security guard position and would be carrying a firearm or other weapon. However, conducting a criminal history check for a medical receptionist position would likely be unnecessary, given the nature of the position;
  • Do Not Ask About Medical and/or Genetic Information: Employers are not permitted to ask about an applicant’s medical history or conditions, or their genetic information. They may ask for medical information once they have hired the applicant, but not before, and only in limited circumstances in order to avoid discrimination. Additionally, employers are not usually ever permitted to ask for someone’s genetic information, which includes family medical history. Again, a good guideline is to only ask if it’s absolutely necessary and actually relevant to the position;
  • Treat All Applicants Equally: Although this sounds obvious, many employers fail to treat all job applicants equally and ask for the same information from each applicant. Employers should run the same background check for all applicants that have applied for the same position. Running checks based on a person’s protected class, such as religion or race, is considered discrimination, which is illegal; and/or
  • Notify Applicants and Employees About Hiring and Promotion Decisions Based on Background Check Reports: Employers are required to notify the applicant or employee of the employment decision, as well as provide them with a copy of the background report. This ensures that the person has ample time to review the report and explain any potentially negative information contained in the report.

What Else Should Be Considered In Order to Avoid an Illegal Background Check?

Most state and federal laws mandate that academic transcripts and financial loan information are confidential. As such, they cannot be released without the owner’s consent, and an employer would need to ask the applicant to provide that information. Any criminal convictions which have been sealed or expunged do not have to be disclosed to an employer. Generally speaking, what can be disclosed varies from state to state.

Employers must obtain written consent in order to research a person’s credit report. Should an applicant be denied a position based on their credit report, when they were otherwise qualified, the employer must provide them with a copy of the report to give them time to dispute it. Finally, employers may conduct a background check into an applicant’s driving record. This is especially true if the position will involve commercial driving.

Do I Need an Attorney for Employee Background Checks?

If you are an employer needing to conduct employee background checks, you will want to ensure that you are doing so legally, every time. A skilled and knowledgeable employment law attorney can inform you of your state’s guidelines regarding employee background checks. Additionally, an experienced employment law attorney can defend you in court if a legal action is filed against you or your company.