An employment background check verifies information provided by a job applicant and assesses their suitability for a position. These checks typically involve a third-party agency collecting public and private records to create a detailed report. The process is governed by regulations balancing the employer’s need for information with the applicant’s right to privacy and fair consideration.
Understanding the Legal Framework Governing Background Checks
Federal law establishes rules for employment background checks, particularly when a third-party consumer reporting agency is involved. The Fair Credit Reporting Act (FCRA) mandates that employers must provide an applicant with a clear written disclosure of their intent to obtain a report, and secure written authorization. This disclosure must be presented in a document consisting solely of the disclosure itself, separate from the job application or any other documents.
If an employer decides not to hire someone based on the report, they must follow a two-step adverse action process. First, they issue a pre-adverse action notice, including a copy of the report and a summary of the applicant’s rights under the FCRA. This allows the applicant time, often five business days, to review the information and dispute inaccuracies with the reporting agency. If the employer still moves forward, they must then issue a final adverse action notice, which provides contact information for the agency.
State and local regulations can impose additional restrictions beyond federal law, further protecting applicants. Many jurisdictions have adopted “Ban the Box” laws, which prohibit employers from asking about an applicant’s criminal history during the initial application phase. These laws generally require the employer to delay any inquiry into criminal records until later in the hiring process, often after a conditional offer of employment. This framework ensures a candidate’s qualifications are considered before their past is evaluated.
Verification of Identity and Professional Credentials
Background checks confirm identity and the truthfulness of resume information. This process verifies the Social Security Number and traces previous addresses to establish residential history. Address history determines the jurisdictions where public records checks should be performed.
Employers verify professional credentials to ensure candidates possess the qualifications they claim. This includes contacting educational institutions to confirm degrees, attendance dates, and sometimes the major or area of study. For positions requiring a specific license or certification, the check confirms the status and validity of those documents with the issuing body.
Past employment history is verified with former companies. A background check typically confirms employment dates and job titles held. Some employers attempt to verify the reason for leaving or final salary, though many former employers only provide basic information to limit liability.
Detailed Review of Criminal History Records
Criminal history review is the most scrutinized element of the employment background check. Records are typically searched at the county, state, and federal level to identify past criminal activity. This search distinguishes between felony convictions (most serious offenses) and misdemeanor convictions (lesser crimes).
The federal FCRA places a seven-year reporting limit on non-conviction information, such as arrests that did not lead to a conviction, dismissed charges, or civil suits. A consumer reporting agency generally cannot report such adverse information if it is older than seven years, particularly for jobs paying below a certain salary threshold. However, there is no federal time limit on reporting criminal convictions themselves, meaning a conviction record can theoretically be reported indefinitely.
Many states and localities have adopted their own rules that place a seven-year or similar limit on the reporting of convictions, regardless of the federal standard. Records that have been legally sealed or expunged, meaning they are officially removed from public access, should not appear on a background check. While the law provides protection for sealed records, the complexity of local court systems can sometimes lead to reporting delays or errors.
Financial and Driving Records Checks
Certain positions require an employer to look into a candidate’s financial stability and driving history.
Financial Records Checks
A financial records check (credit check) is reserved for roles involving handling company money, managing finances, or accessing sensitive data. The report shows information like debt repayment history, public records of bankruptcy, and collection accounts.
An employment credit report does not display the applicant’s credit score, which is a proprietary numerical rating. The report summarizes financial behavior, but employers are restricted from viewing the numerical score. Most employers do not conduct a financial records check for jobs not involving financial responsibility, high-level management, or security access.
Driving Records Checks
A Motor Vehicle Records (MVR) check is performed only when the job requires the employee to operate a company vehicle or drive extensively as part of their duties, such as for a delivery driver or a traveling sales representative. This check details information about the applicant’s driving license status, any traffic violations, and accidents. State motor vehicle departments maintain these records, and the report typically covers a look-back period of three to seven years, depending on state regulations.
Sources of Information Beyond Traditional Records
Background screening includes publicly available sources beyond traditional court and financial records. Consumer reporting agencies may search public records for civil court filings, such as lawsuits or restraining orders. These records provide insight into a person’s character or past behavior.
A growing practice involves the review of a candidate’s social media and general online presence. Employers may look at publicly available profiles on platforms like LinkedIn, Facebook, or X to assess professionalism and identify content inconsistent with company values. While employers can view public posts, they are prohibited from using information related to legally protected characteristics, such as race, religion, or gender, to make hiring decisions.
Reference checks remain a standard part of the screening process. The employer contacts individuals provided by the applicant, such as former supervisors or professional colleagues. These calls gather qualitative information about work ethic, skills, and performance, supplementing factual data from record searches.
Information That Cannot Be Used or Reported
Federal and state laws prohibit the use or reporting of specific types of information in an employment background check. Medical history is generally off-limits, protected under privacy laws, and employers cannot request medical information until after a conditional job offer has been made. Similarly, worker’s compensation history, which relates to on-the-job injuries, is typically excluded from pre-employment screening reports.
Information related to legally protected characteristics cannot be used to make hiring decisions. These characteristics include race, color, religion, sex, national origin, age, and disability. Screening processes that unintentionally disadvantage a group based on a protected characteristic can lead to claims of discrimination.
The FCRA also imposes time limits on the reporting of adverse non-conviction data, such as arrests older than seven years and civil judgments, to prevent outdated information from unfairly affecting an applicant.
Records that have been sealed or expunged by a court order are legally removed from the public domain and should not be reported. Their appearance on an employment screening report would violate the court order. Employers must also be mindful of state laws that may prohibit the use of certain types of information, such as certain misdemeanor convictions after a specified number of years.
What to Do If Errors Occur
Discovering inaccurate information on a background check report requires prompt action from the applicant. If an employer notifies a candidate of an intent to take adverse action based on the report, the applicant has the right under the FCRA to receive a copy of that report. This disclosure allows the applicant to review the document and verify the accuracy of all the reported data.
The applicant must then contact the consumer reporting agency (CRA) that provided the report to initiate a dispute. The CRA is legally obligated to investigate the disputed information within a reasonable period, typically 30 days, by contacting the source of the data. If the information is found to be inaccurate, incomplete, or unverifiable, the CRA must correct or delete it from the report and provide a revised copy to the employer.