Overview: Proactive employers often turn to employee background checks in an effort to ferret out high-risk job candidates. This can include a check of criminal history records, as well as an applicant's credit history and references.
However, there are several steps an employer must take to ensure such measures comply with the law. In particular, it must follow the federal Fair Credit Reporting Act's notice and consent requirements before conducting a background check. In addition, HR should be aware that some states prohibit employers from asking about arrest records and limit or prohibit consideration of convictions that have occurred long ago.
An employer that decides to conduct employee background checks of prospective employees should do so consistently to avoid the risk of a discrimination claim. Statistics have shown that such checks tend to have a greater impact on minority applicants.
Trends: Several states, including California, Illinois and Connecticut, have enacted laws in the last few years limiting the use of credit checks to certain types of jobs such as those involving financial data or sensitive information. A host of similar measures have been introduced elsewhere, so this is a trend that bears watching.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect forthcoming Washington state and Kansas City 'ban the box' laws.
Effective June 6, 2018, Washington employers may not ask about arrests or convictions - or receive information through a criminal background check - before a job applicant is deemed otherwise qualified for a position.
Updated to reflect forthcoming Washington 'ban the box' ordinance.
Updated to include forthcoming Vermont recreational marijuana law.
Updated to reflect forthcoming Kansas City 'ban the box' law.
This podcast takes an in-depth look at the many recent California employment law changes with Littler Mendelson attorney Bruce Sarchet, of the firm's Sacramento office.
Updated to reflect an amendment to the state 'ban the box' law, effective December 20, 2017.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.