Background Checks: What’s Legal, What’s Not

Posted by on June 12, 2012 in Employee Background Checks [ 8 Comments ]

background checksMany small businesses and large enterprises conduct background checks on at least some of their candidates in order to identify employees that could be an asset to their business, while weeding out those that would clearly be a liability due to situations like theft, workplace violence, or some other situation which poses a risk to others or your business.

When you’re ready to conduct a background check on a job candidate, it’s important to know what you can and cannot ask. Familiarize yourself with the Fair Credit Reporting Act (FCRA), which regulates how you can perform an employment background check. Running a background check isn’t something you can simply do on a whim – you must get written, explicit approval from the job candidate before you go looking into their past.

What’s Okay to Ask About?

You should always start your employee background check by uncovering the basic public information – call the references they’ve provided you, and confirm their past employment and education. You may also be tempted to do a quick Google search. Legally, this is allowed, though it’s possible that the information you find could give you clues into their race, religion, gender, disability, or other attributes that are protected from being used to make hiring decisions. Tread lightly here.

Every state has its own regulations regarding the type of information you can gather from job applicants, but here are some general questions that you are allowed to ask:

  • Have you ever been convicted of a crime?
    • You can ask a job candidate to disclose any felony convictions or jail time, regardless of the type of felony or when the conviction took place. You may ask about misdemeanors that occurred, though probably only within a certain time frame. Check with your state policies regarding details on what other criminal information you can legally ask of someone.
  • May we access your credit rating?
    • Under the FCRA, you may ask an employee for written permission to access their credit report. Ensure that this is applicable to the job they’re applying for and isn’t an unnecessary precaution. If knowing their credit rating is important to the job they have applied for, know that over the past three years, seven states have enacted laws barring employers in many instances from gaining access to credit reports and 15 states have similar legislation pending. The reason for this is to avoid a Catch 22: they want to avoid situations where people need a job to get their finances back on track, but can’t get a job because their credit rating prohibits them from doing so.
  • Do you have the legal right to work in the United States?
    • You may ask if the individual can, upon hire, provide proof of their legal right to work in the United States. After all, it’s illegal for employers to knowingly hire workers who do not have valid work authorization. But do not ask any other questions regarding country of origin or native tongue. You can, however, ask about language fluency if it’s relevant to the job function.
  • How has your experience in the armed forces prepared you for this position?
    • It’s unlawful to discriminate against someone because of their service in the U.S. armed forces, the state defense force, the National Guard, or any other reserve component. But, if you ask them about their experience or training received in the military, you can gain more knowledge about their background without overstepping your grounds.

What’s Not Okay to Ask About

In general, you should avoid any questions that give you insight into an applicant’s membership in what’s called a “protected class,” such as race, religion, color, national origin, sex, pregnancy, age, disability, sexual preference, marital status, genetic predisposition, or other characteristic protected by law. Familiarize yourself with the acronym “BFOQ” – bona fide occupational qualifications, which relate directly to the candidate’s ability to successfully do the job.

  • Have you ever been arrested?
    • There is no law that outright prohibits you from asking about arrests, but using an arrest record search as an absolute measure against hiring someone is against the law. An arrest alone doesn’t prove that your candidate has committed a crime; it must be accompanied by a conviction. Check with your state regulations to see if your state limits the use of arrest records.
  • Do you have any health conditions? Do you have any disabilities?
    • The American with Disabilities Act restricts you from asking a job applicant to answer medical questions, disclose their disability, or take a medical exam before making an offer. That said, you can and should ask about their ability to safely perform all necessary job responsibilities.
  • Are you an American citizen?
    • Though you can ask if an applicant is legally authorized to work in the United States, you can’t outright ask whether or not they are a citizen before making a job offer. The IRCA – the Immigration Reform and Control Act – makes it illegal for you to make negative hiring decisions based on someone’s citizenship or immigration status.
  • What is your Facebook password?
    • Ok, it’s not ILLEGAL to ask this question, but it’s certainly become questionable. More and more companies have been asking that applicants hand over their social media accounts, which may expose them to discriminatory failure-to-hire lawsuits. If you uncover an applicant’s age, race, gender, sexual preference, or other protected status through Facebook or other social networks, you lose the ability to claim ignorance if an applicant tries to make that kind of claim. Legally, you cannot ask for this information otherwise. The state of Maryland has enacted a prohibition of the practice of asking a candidate to disclose their Facebook password, and similar legislation is pending in Congress and in other states.

What You Can Do With This Info

It’s okay not to hire someone if his or her background check reveals a conviction or blemish that is directly related to the type of job responsibilities in question. If his or her history would likely open your company up to lawsuits or can cause your company significant damages, you can make the call not to hire that particular candidate.

A good example would be if a candidate were convicted of child pornography, and he would work daily with children in a school setting. Or, if her background check reveals theft, and she would be directly responsible for handling money in your organization.

What You Cannot Do With This Info

First of all, it is not okay to share this information with anyone other than that job candidate. The FCRA prohibits you from distributing it to anyone other than the person whose background report you have obtained.

From there, it’s also not okay to not hire someone because he or she has an arrest that didn’t lead to a conviction. Since an arrest does not automatically mean a conviction, you should look only at those convictions that are directly relevant to the position you’re hiring for.

Finally, it is no longer okay to have a blanket policy that prohibits the hiring of any candidate who has any criminal history or a type of negative mark on their background check. The EEOC recently clarified their rules on the blanket use of criminal records for screening people out of jobs: these practices may have a disproportionately negative effect on applicants of a particular race, color, religion, natural origin, or other class of individuals. For instance, it’s been recommended that having a policy against hiring anyone with a bad credit rating or anyone that has had criminal convictions would disproportionately affect minorities.

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Please note: background checks on prospective employees must comply with the Fair Credit Reporting Act. More info here.

8 thoughts on “Background Checks: What’s Legal, What’s Not

  1. avatarEric

    Is it ok to ask a personal/ professional reference if the applicant has any substance abuse history?

  2. avatarErica Bell

    Hi Eric,

    It often depends on where the position is located as different states will have different policies with regards to what can be asked during an interview process.

    – Erica

  3. avatarKaren

    Is it legal for an individual to pay and get a background check on me then mail that background check out to members of my neighborhood? This person is disgruntled with me over a business, discovered I had a criminal conviction back in 1993 and last summer pulled my criminal background report along with personal and private financial information, included all of it with a letter and he mailed it to numerous people in my community effectively causing significant financial harm to me and my husband. I want to know if what this person did is even legal where I live which is Nevada. Per the FCRA it doesn’t appear what he’s done is legal but I would like any information you could provide.

  4. avatarErica Bell

    Hi Karen,

    Thanks for reading and reaching out. I would encourage you to talk with someone with someone who is experienced in handling issues similar to this one. If you are unsure if what an individual has done is legal, speaking with your local police department, a lawyer, or maybe even the company who ran the background check are some options you can take for better clarification.

    – Erica

  5. avatarJeanette

    I was recently working at a position with a hospital. I believe my background information was shared by Human Resources to the manager, who then shared with my supervisor/trainor who was trying to get information about my previous employment in a round-about way (i.e. asking me questions in such a way that I could tell she already knew the answer to the question).

    I was terminated from this position early.

    I can understand why the manager needed all information, but the supervisor is what I am questioning. She was snooping for a lot of personal information. I am not going to use any feedback for sake of litigation, but I am just curious.

    Thank you in advance.

  6. avatarErica Bell

    Hi Jeanette,

    I’m unsure what state you are in as different regulations could apply. I think if you’re wondering about whether or not the supervisor is within the law obtaining certain information, it would be best to do some research about background information within your state and county and what regulations there are. If you are in need of more information or would like some help in understanding laws regarding an employee’s background information, you may want to speak with an attorney who has experience in the matter.

    – Erica

  7. avatarDee reynolds

    Can someone please help me with my question.

    Here are the facts…
    1. I’m opening a brand new concession trailer on my commercial property that I own in pennsylvania.
    2. I have all my state licenses that I am required to have and passed my state inspections.

    My question…. The township i live in asked for a criminal background…. why? Its my business. Its my property. Im not employed by them nor am i leasing anything from them? Are they allowed to do this?

  8. avatarErica Bell

    Hi Dee,

    You’ll need to look into your local and state regulations. If you have a specific questions, you should speak with law enforcement in your area and take a look at the laws related to your specific case.

    – Erica

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