Legal Issues with Background Checks

California may have particularly strict laws when it comes to dealing with consumers, but it`s certainly not the only one. It would take too long here to review each state`s requirements, but suffice it to say that employers need to be aware that it`s not just federal laws they need to know when conducting background checks. However, for companies that conduct these background checks, they may pose potential legal and regulatory liability. The above information is of general interest and does not constitute legal advice. The reader should not rely on any of the above information for legal considerations and decision-making purposes and should consult a lawyer before taking any action based on the information presented on this site. For example, California boxing law`s prohibition prohibits employers from asking questions about a candidate`s criminal record before making a conditional job offer. Once this offer is made, employers hiring in California can ask about criminal history, but they must conduct an individual assessment of a candidate`s criminal past. In other words, they cannot have a policy that categorically disqualifies someone who has a criminal record. Companies use background checks for employment for a variety of reasons, including checking employment and credentials, ensuring acceptable driving records, and ensuring the safety of their employees.

But one of the main determining factors in examining employment history is to limit the risk to the company and its shareholders. If an employer received your background report without your permission or rejected you without sending you the required notices, report it to the FTC at Also notify the FTC if you learn that a company has shared your information with others without your permission. The first step is to compare employee background checks with other background checks and hiring decisions to assess whether the criteria used result in a “different impact” on groups protected by federal or state civil rights laws. A variety of developments and trends in society as a whole are reflected in trends associated with background checks and reference checks. However, a significant majority of states now have laws that grant some degree of legal immunity to those who provide employment references. Employers should consult legal counsel for details on compliance. See How can employers protect themselves from liability when providing references? And if you give references, how truthful can you be? Perform the same checks for all candidates for a particular position at the same stage of the hiring process (for example, for all finalists in a position). Employers cannot decide whether or not to conduct background checks based on a candidate`s protected category, such as race, color, national origin, sex, religion, disability, or any other protected category.

Don`t discriminate when using background check information. For example, if a particular credit history disqualifies an applicant, it must disqualify applicants of all races. Employers should also be careful to avoid using background reports, which may lead them to hire or reject a class of employees based on race, gender or other protected class. In addition to reference telephone interviews, selection companies and employers are using technology to improve reference check results. Some filtering companies offer online solutions that allow a wide range of referral sources to respond quickly and confidentially. Others believe that online reference checks do not allow a hiring manager or selection professional to ask questions interactively. While this is true, applicants still have the option to call and ask follow-up questions about applicants after reading the initial report. State and local laws also restrict the use of criminal records in employment decisions. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island, as well as a dozen cities and towns, have “banned” the box for private employers, meaning they can`t seek criminal convictions in job applications.

Employers can inquire about the criminal record (within certain limits) later in the hiring process – for example, a conditional job offer. If you take an undesirable action (e.g. do not hire a candidate or fire an employee) based on the basic information obtained by a company when compiling the basic information, the FCRA has additional requirements: Whenever you use a candidate`s or employee`s basic information to make a job decision, regardless of how you obtained the information, You must comply with federal laws, protect applicants and employees from discrimination. This includes discrimination based on race, colour, national origin, sex or religion; Handicap; genetic information (including family history); and age (40 years or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).