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
California Governor Jerry Brown has signed into law two measures that restrict employers from asking job applicants about their salary and criminal history. Both laws are effective January 1, 2018.
Updated to reflect salary history restrictions, effective October 6, 2017.
Updated to reflect extension of mandatory background check requirements to temporary staffing agencies, effective July 1, 2017.
Updated to reflect final regulations to the New York City Fair Chance Act, effective August 5, 2017.
Final regulations clarifying and expanding New York City's "ban the box" law - the Fair Chance Act (FCA) - take effect August 5, 2017.
Updated to reflect that certain private school employees are subject to mandatory background checks, effective July 1, 2017.
Enhanced to include more detailed coverage of the Criminal Offender Record Information law.
Updated to reflect law implementing voter-approved medical marijuana amendment, effective June 23, 2017.
As mandated by the Massachusetts Department of Criminal Justice Information Services, covered employers should consider implementing the Massachusetts Criminal Offender Record Information (CORI) Model Policy.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.