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 Austin, Texas "ban the box" law affecting most private employers, effective April 4, 2016.
Updated to reflect Austin's new ban the box criminal history law affecting most private employers, effective April 4, 2016.
Austin will become the first Texas city to restrict the use of criminal history information by private employers in the hiring process. The ordinance will prohibit both criminal history inquiries and criminal background checks until after a covered employer makes a conditional job offer.
Updated to reflect expanded Philadelphia ban the box criminal history law, effective March 14, 2016.
Updated to reflect Seattle's new notice and posting requirement under its Fair Chance Employment Ordinance.
As mandated by the New York City Commission on Human Rights an employer with four or more employees in New York City must provide notice of its analysis of an applicant's criminal history if it is seeking to withdraw a conditional employment offer.
Effective March 14, 2016, Philadelphia's "ban the box" ordinance will expand to cover all employers in the city regardless of size. In addition, the amended law will prohibit employers from asking about an applicant's criminal history or conducting a background check until a conditional employment offer has been made.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.