If you are searching for a job, you may be asked to consent to a background check. The term "background check" is used broadly to refer to any investigation an employer does to verify that the information an applicant supplied is accurate or any investigation that goes beyond information the applicant provides. For example, an employer might contact former employers, get school transcripts, or check credit reports.
There are some good reasons why employers run background checks, but there are also some legal limits on how far they can go. Certain records are off limits for employment purposes or won't be handed over without the employee's consent. At some point, the law recognizes that a legitimate investigation into an applicant's qualifications can turn into a violation of privacy.
Why Employers Perform Background Checks
Although some applicants find background checks intrusive, employers have good reasons to request them. Unfortunately, plenty of job applicants give false or incomplete information in their applications and resumes. Employers want to find the best qualified employee for the position, which means they need to know the truth about experience, credentials, and so on.
Employers also want to avoid liability for dangerous or illegal acts by their employees. If an employee causes damage while on the job, the employer can be held responsible. So, for example, an employer doesn't want to hire a driver with a lousy DMV record or an apartment manager with a history of criminal burglary. For some jobs, especially those in which the employee will work with vulnerable populations (such as children, the elderly, or people with disabilities), background checks may be legally required.
Rules for Particular Types of Records
Just because an employer might have strong reasons to conduct a background check doesn't mean there are no rules. An employer that digs too deeply or too intrusively could violate the applicant's privacy. For certain types of records and information, the law places some limits on who can access them and how. Here are some examples:
- Criminal records. State laws regulate whether, and to what extent, an employer can ask about an applicant's criminal record. Some states prohibit employers from asking about arrests or convictions that have been expunged, for example. Some states allow criminal background checks only for certain positions, or allow employers to consider an applicant's criminal history only if it relates to the job.
- School records. School records, including transcripts and recommendations, are confidential under federal law and the laws of some states. Because of this, most schools will not release records without the applicant's consent, and some will release records only to the applicant directly.
- Credit reports. Federal law allows an employer to run an applicant's credit report, if the applicant consents in advance, in writing. However, an increasing number of states limit whether, or for what purposes, an employer may use credit reports in making employment decisions. So many people have suffered dings to their credit reports as a result of the economic crisis that some state legislatures have decided it's unfair for employers to consider this in hiring. Also, federal law prohibits employers from refusing to hire an applicant because of a past bankruptcy.
- Medical records. Under the Americans with Disabilities Act (ADA), an employer may not request applicant medical records. An employer also may not request or make job decisions based on an applicant's genetic information.
Get Legal Help
It can be tough to find out why you weren't hired. However, if you believe a prospective employer considered information it shouldn't have accessed in making its decision, or you believe you were subjected to an overly intrusive background check, you may want to speak to an employment lawyer and find out whether your rights have been violated.
