If you’re looking for work, you may be asked to submit to a background check: an investigation by a prospective employer trying to learn about your experience, qualifications, and history. Many companies run basic background checks intended to verify your identity and the information on your application or resume. Some go much further, delving into criminal records, interviewing people who know you, and more.
What are the legal limits on how far an employer can go? Find out below, as we answer some frequently asked questions about background checks.
It depends on the information the employer wants and who is going to gather it. An employer must have your written consent to check your credit report. Written consent is also required if an employer will hire an outside agency (such as a criminal background check firm or private investigator) to check you out. And, your written consent may be required before an employer can get other information, such as your school transcripts or detailed information on your military service.
Even though this leaves some information an employer can gather on its own, smart employers always ask applicants for permission before conducting a background check. This prevents later claims that the employer violated applicant privacy; it also saves the employer time by letting applicants take themselves out of the running right away if there are things in their past they want to keep private.
An employer cannot force you to sign a consent form. You can always refuse to give permission. However, if the employer is entitled to the information it seeks, the employer is also entitled to take you out of the running if you won’t consent. In other words, the employer can refuse to hire you – or even consider you for the position – if you don’t consent to a reasonable request.
It depends on the law of your state. Under federal law, employers are allowed to check an applicant’s credit report as long as the employer gets the applicant’s written permission to do so. (An employer that decides not to hire an applicant based on the report has to notify the applicant.) In recent years, however, the economic downturn has damaged plenty of people’s credit reports, and some states have responded by limiting how employers may use these reports in making job decisions. In these states, an employer may be prohibited from checking applicant credit reports altogether or may be allowed to do so only for certain types of jobs. (For more information, see Can Prospective Employers Check My Credit Report?)
Yes. Even if an employer isn’t allowed to pull your credit report, there are other ways an employer can find out about your bankruptcy case, such as a simple public records search. Unfortunately, if an employer decides not to hire you because of a past bankruptcy filing, there’s not much you can do about it. Although federal law prohibits employers from firing current employees for filing for bankruptcy, it doesn’t protect applicants from discrimination based on bankruptcy in the hiring process.
Legally speaking, educational records – including recommendations, financial information, and transcripts – are typically confidential. As a result, most schools will not release records without the consent of the student (beyond perhaps confirming that a student got a particular degree in a particular year). Some schools will release records only to the student directly.
No. In most states, an employer may require applicants to take a drug screen as a condition of being considered or hired for a job. You don’t have to submit to the test, but an employer can refuse to consider your application if you won’t take the test. (For more information, see Drug Tests for Job Applicants.)
Employers must follow certain guidelines when hiring an outside party to run a background check. Under federal law, arrests that are more than seven years old may not be included in a consumer report, unless the position has an annual salary of more than $75,000. There is no time limit for conviction records. And, employers must notify applicants if the decision not to hire was based on information found in a consumer report.
Many states have additional requirements regarding whether a private employer may consider an applicant's criminal history in making hiring decisions. Some states prohibit employers from asking about arrests that did not lead to convictions. Other states allow employers to ask about convictions only if they occurred within a certain time frame or the underlying conduct is relevant to the position. Many states have rules against asking about records that are sealed or expunged. And some states allow employers to consider criminal history only for sensitive positions, such as nurses, childcare workers, private detectives, and other jobs requiring licenses. To find out your state's rules, see State Laws on Use of Arrests and Convictions.
Members and former members of the armed forces have a right to privacy in their service records. These records may be released only under limited circumstances, and the service member’s consent is generally required. However, the military may disclose name, rank, salary, duty assignments, awards, and duty status without the member's consent. Can an employer get records of my military service?
Some employers run very extensive background checks on job applicants, including asking other people about an applicant’s character, activities, and past drug use, for example. In some circumstances, this might pass legal muster. For instance, if the employer is a government contractor and its employees will need security clearances to do their jobs, a detailed check might make sense. However, a background check that is too intrusive to be reasonable for the job in question could violate an applicant’s privacy rights, especially if the employer doesn’t get consent first.
Courts decide privacy cases based on all of the facts and circumstances. Although there are a few clear rules, privacy matters are typically decided through the application of a balancing test. The court will consider your reasonable expectations of privacy in the particular areas the employer checked; against that, the court will consider the employer’s reasons for seeking the information. Then the employer will decide, on balance, whose arguments should carry the day. Because of this variation, it’s a good idea to consult with a lawyer if you believe a prospective employer has violated your privacy. A lawyer can help you assess your chances in court and help you negotiate a reasonable settlement with an employer who may have crossed the line.