What Employers Can See in a Background Check

As a job seeker, you have certain rights. Know what an employer can and cannot consider in an employment background check, what they have access to, and why they may see more than they should.

Background checks were once reserved for those with the most safety-sensitive positions or highest security clearance jobs. But today, nearly every organization has access to easy, cost-efficient, web-based screening services. Because of this, pre-employment background checks have become the norm, with near-universal implementation. HR.com and the National Association of Professional Background Screeners report that 96% of companies request at least one background screening from prospective hires.1

The popularity of background screenings has created safer work environments. However, it has also led to some employers hiring inexperienced and ineffective third-party screening companies that overstep when it comes to what the law allows them to consider. As a candidate (or an employee), you must be aware of the legal standards and your rights under the Fair Credit Reporting Act (FCRA) when asked to undergo a pre-employment background screening.2

Jared Rosenthal
Published on

The Dangers of Negligent Background Screenings

It isn't just small businesses that can run afoul of the complex rules that guide how background checks are to be conducted. Big corporations like Whole Foods, Amazon and Home Depot make the news when they must pay out large settlements due to lawsuits arising from improper background screenings.

If you're an applicant and are subject to a negligent employment background check, it could cost you a job. How does this happen? It may be that the company receives a criminal history for someone who has a name that's similar to yours. Or they may have received information that they should not have been able to see and consider. For example, old or expunged court records might have showed up in a database, and the third-party agency didn't scrub the report to protect your rights.

What Can Employers See on Background Checks?

Most job candidates don't know what a company sees in their background screening. It can include your social security number, credit report, work history, criminal background checks, vehicle registration and driving record, compensation, medical records, drug screening results, sex offender status and more.

What Information is Part of Employment Background Screening?

A potential employer may check a candidate's educational background and past employment, criminal record, drug test results, motor vehicle records, credit history, and even their use of social media. Certain positions may require additional screenings.

Job Seekers' Rights During Background Screens

Providing Proper Consent for a Background Check

The FCRA states that candidates must give written consent, which consists of their signature on a waiver, for any background report to be released to the employer.2 A background check agency can only provide companies with information for a valid need, such as for an existing job application. Even within that context, it is illegal to run a background check to determine a person's national origin, race, religion, sex, or any other protected category.

If you apply for a job and are required to submit to a background check, you should be asked to sign a consent form. This grants the company permission to perform that background check. If an employer does not disclose that they will be running a background check on an employee or an independent contractor, or does it without your permission, they put themselves at legal risk.

Obtaining a Copy of the Report

According to FCRA rules, an employer must provide a copy of the background report to you, the candidate, upon request. Be sure to check the report for inaccuracies. If the information is correct but the employer flags the report, you have the right to know what the hiring manager used to deny you the job. At this point, you are allowed to explain gaps in your employment history, criminal offenses, or convictions.

What Employers Can Legally Screen For

Most background checks for employment purposes verify information from resumes and applications. This can include education, employment history, professional licenses and certifications, and references. They can also check your criminal background through various court record repositories and databases.

  • State and county court records
  • National criminal databases
  • Military records
  • Do not fly lists
  • Sex offender registries
  • Bankruptcy filings
  • Education verification
  • Previous employers
  • Driving records
  • Certifications
  • Licenses

What Employers Cannot Consider in a Background Check

Certain information is outside the legal bounds of a background check—this includes the person's medical records, disabilities, and genetic predispositions. An employer can look at an applicant's social media, but if they find and use protected information to refuse to hire the person, they may have to prove that they didn't use the protected information to reach that determination. Some states allow credit checks and others don't—eleven states prohibit the use of credit checks in pre-employment screenings.3

Arrest records are always prohibited since everyone is presumed innocent until proven guilty. For this reason, an employer may only look at convictions. Sealed records and juvenile records are also out of bounds. However, this doesn't mean that the data isn't available—on the contrary, it can be easily obtained. Businesses aren't supposed to consider anything legally defined as inappropriate.

State-Specific Background Check Laws

In the past years, states have been passing fair hiring legislation that dictates local rules in addition to federal requirements. This adds to the complexity for companies to stay compliant with regulations, as they may now vary depending on where the company is based. Many states have adopted "ban the box" rules that make it illegal for hiring managers to ask applicants about their prior criminal convictions.4 In California, for example, an employer cannot consider marijuana misdemeanor convictions that are more than two years old.5

The Cost of Bad Background Checks

When a job seeker is turned down for a position because of a botched background check, this is costly on both sides. As an applicant, you lost a job that had already been offered to you. For an employer, they may get sued. In the past decade, employers and ineffective background screening companies have paid $326 million in settlements.6

If you had a job offer rescinded due to a background check, you should ask for the report and read it carefully. If anything is inaccurate, or if there is anything that the employers should not have used to make their decision, you must quickly speak up. In most cases, you have just a week to contest it.

If you are an employer, it isn't hard to comply with background check laws, and when you work with a professional background screening agency, you'll make better hiring decisions. Learn why a pre-employment screening can lead to a lawsuit. And don't purchase a background check solely based on the price. Remember the old adage: "you get what you pay for." Partner with a trusted credit reporting company to ensure that they are protecting both you and your job applicants.

Jared Rosenthal

Jared Rosenthal

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