Background Check Laws: What Info Can Employers Use?

Prospective employers have access to a treasure trove of personal information. This is true online and offline. This information may factor into their hiring decisions in the background check process.

Current background check laws ban employers from accessing certain types of information. This includes military and medical records. But, drug screenings and credit reports require an employer's consent. There are other protections as well.

Job applicants often share embarrassing personal information with prospective employers through social media sites. As a job candidate, you should only share information you would be willing to discuss during the hiring process.

Background Checks: Restricted Information

When a potential employer conducts a background check, laws in most states ban using certain information in hiring decisions. They have access to information that is a matter of public record. Use of certain public records in hiring decisions may not be allowed. The following types of records are usually off-limits to employers:

• Criminal records/criminal history: Under state laws, criminal history information varies from state to state. It often depends on the type of work (such as childcare facilities and law enforcement). Some states allow access to criminal records only with an applicant's consent. Others do not.
• Education records: College transcripts are relevant to a job application. Employers may get them with an applicant's consent.
• Military records: Military records are confidential under the federal Privacy Act of 1974.
• Bankruptcy: Bankruptcy filings are a matter of public record, but employers can't use them in a hiring decision. The Fair Credit Reporting Act (FCRA) regulates the use of consumer reports, including credit reports, in employment decisions. Bankruptcy information from a credit report falls under the FCRA's purview.
• Medical records: Employers may need a physical examination when relevant to the job. Otherwise, medical records are confidential.
• Workers' compensation: Although public record, employers can only use these records if they're relevant to the job's duties.

Background Checks: Common Inquiries

Employers typically ask about background information that is directly related to the job. For example, it is reasonable to check an applicant's driving records — including criminal convictions — for a flower delivery service. But does it make sense to check the driving records of someone applying for a job as a cashier? Still, the types of information allowed are broad.

The following types of records are commonly accessed in pre-employment background checks:

• Driving records
• Court records
• Property ownership records
• Personal references
• Drug tests
• Social Security number
• Character references
• State licensing records
• Past employers
• Sex offender lists

Credit Checks

Some states ban the use of pre-employment credit checks as part of employment decisions unless the employer proves relevance to the job. Other states have no such restrictions. Those subject to the adverse action of being turned down for a job based on a credit check can get a copy of the credit report and the credit history from the consumer reporting agencies. They're also entitled to the conviction records of criminal offenses and the applicant's criminal history used in the decision.

State and federal laws on credit background checks and background check reports are evolving at the state and federal levels. The point of these changes is to enhance the rights of jobseekers in response to the increasing practice of U.S. employers using credit checks.

Get a Legal Case Review

Background checks and background screening can give an employer valuable information before making a hiring decision or as part of a conditional job offer. But balancing the need for information with privacy rights and avoiding discrimination can be a delicate process. If you're considering using a background check, face one as part of a conditional offer of employment, a lawyer can help determine your rights and obligations under local laws. Contact an employment law attorney near you for legal advice.