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
Delta Airlines has agreed to pay $2.3 million to settle claims from about 44,000 job applicants alleging the airline violated the Fair Credit Reporting Act (FCRA) with disclosure forms that include impermissible extraneous information.
Updated to reflect additional salary history inquiry restrictions under Oregon's equal pay law, effective January 1, 2019, and final rules implementing the law.
Updated to reflect amendments to criminal history inquiries law, effective January 1, 2019.
Updated to reflect law protecting employers from negligent hiring claims, effective December 27, 2018.
Updated to reflect expansion of criminal records expungement law, effective December 27, 2018.
Updated to reflect Clean Slate Law involving access to criminal records, effective December 25, 2018.
Updated to reflect forthcoming Suffolk County law regarding salary history inquiry restrictions.
Updated to reflect the Michigan Regulation and Taxation of Marihuana Act, effective December 6, 2018.
Updated to reflect the medical marijuana law, effective December 6, 2018.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.