Background Checks

While an employer may have reasons for wanting to do a background check, as a potential employee, you also have rights and an expectation of privacy. For many types of information, an employer needs to get your written permission before they can get information about you. Once an employer has information about you, they must inform you if they take any adverse action against you because of that information. Additionally, an employer cannot use any of the information in a discriminatory manner. For more information about your rights concerning background checks, read below:

My potential employer wants to do a background check before hiring me. Can they do this? What are they looking for?

While the laws vary between states, typically an employer can perform a background check. In fact, for some jobs, like any job that involves working with children, employers are required to perform background checks. Some of the most common information an employers check is:

  • Credit history
  • Driving record
  • Criminal record
  • Court records
  • References
  • Drug tests
  • Past employers
  • Sex offender lists
  • School records
  • Medical records

But that’s my private information. Does an employer need permission before performing a background check?

For a lot of information, like your school transcripts or medical records, your employer needs permission first. An employer also needs your permission if they use an outside agency to gather any background information.

However, employers can find out a lot about you without needing your permission just by typing your name into Google. When applying for a job, make sure to Google yourself so you know what shows up and can attempt to fix any wrong or unfortunate information.

So the laws vary between states, but what are the federal laws about background checks?

The main federal law is the Fair Credit Reporting Act (FCRA). The FCRA regulates outside reporting agencies, consumer reporting agencies. If an employer wants a background check from a consumer reporting agency, the employer needs your written permission first. If an employer then takes any adverse action against you because of the report, like refusing to hire you or firing you, you are entitled to a copy of the background check used and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” as well as an opportunity to respond to the allegations and correct any incorrect information.

It’s nice that I get an opportunity to respond, but I would rather know what’s on my credit report beforehand and correct it before it becomes an issue. Is there any way to see my credit report?

Yes, you can get your credit report whenever you want, but you may have to pay for it. However, you can get the information for free if:

  • a person has taken adverse action against you because of information in your credit report;
  • you are the victim of identity theft and place a fraud alert in your file;
  • your file contains inaccurate information because of fraud;
  • you are on public assistance; or
  • you are unemployed but expect to apply for employment within 60 days.

You are also entitled to one free credit report every 12 months, which you can request at annualcreditreport.com or one of many other credit reporting websites.

Great, but what if the information in my credit report is wrong? Or what if the information is correct, but it’s old?

If the information in your credit report is wrong, the FTC, which enforces the FCRA, suggests you write to the credit reporting company as well as the information provider for the credit reporting company. The FTC has more information, as well as sample dispute letters, on the FTC consumer web page.

As for old information, a credit report company typically cannot report on any negative information that is 7 years old or older, or 10 years old or older in the case of bankruptcies.

My credit is flawless, but my criminal record is not. How much will a past criminal conviction hurt my chances at getting a job?

Maybe not as much as you would expect. There is a growing campaign known as Ban the Box that is convincing states to pass laws that push back background checks into later in the hiring process and remove the question about past criminal convictions on job applications.

Can my employer perform a drug test? That seems personal, like a background check on my body.

Like background checks in general, while the laws vary between states, employers generally can perform drug tests, and in some cases are required to do so.

What does an employer want with my medical records? Why do they care about my broken arm in sixth grade?

An employer could have several reasons to want to view your medical records. There could be a legitimate business reason, like the job requiring a lot of physical activity. Or an employer may need to provide information to the company healthcare provider. No matter what the reason, you have rights in this area, including the federal Health Insurance Portability and Accountability Act (HIPPA).

This is a lot of information an employer can find out about me. What if they go too far? Don’t I have a right to privacy?

You do have a right to privacy. If you feel as though your employer has violated your privacy, you should contact us right away.

As for whether or not an employer has violated your privacy, courts use a balancing test. First, a court will look at your reasonable expectation of privacy in the area of the background check. For example, you have a higher reasonable expectation of privacy for your medical records than for what you post on social media. Second, a court will look at the reason the employer conducted the background check. Those two are then weighed against each other to determine whether or not an employer has crossed the line.

I feel as though my employer is using background checks in discriminatory ways. Only some groups of people seem to be affected by the background checks. What can I do?

In a situation like this, the more relevant law may be discrimination law as opposed to the laws about background checks. The Equal Employment Opportunity Commission is the federal agency responsible for enforcement in this area.

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