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 amendments regarding certificates of relief for criminal convictions.
Updated to reflect forthcoming expansion of criminal records expungement law.
Updated to reflect forthcoming law protecting employers from negligent hiring claims.
Updated to reflect law protecting employers from negligent hiring claims, effective August 3, 2018.
One of the fastest-moving trends in employment law involves the plethora of "ban the box" laws affecting private employers that have sprouted up in many states and municipalities. These laws make it illegal to include criminal history questions on initial job applications.
Updated to reflect the state medical marijuana law, effective July 26, 2018.
Updated to reflect forthcoming Clean Slate Law involving access to criminal records.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.