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 include forthcoming St. Louis ban the box law.
Maryland has become the 14th state with a ban the box law affecting private employers after its legislature overrode Gov. Larry Hogan's veto. The City of St. Louis also will soon have a ban the box ordinance.
Updated to reflect the forthcoming Fair Chance to Compete for Jobs Act of 2019.
Numerous legislative changes take effect on or about January 1, affecting minimum wage rates, employee leaves, health care benefits and more. HR should take note of these legal developments and take appropriate steps to comply.
A new law will grant 12 weeks of paid parental leave to federal workers for the first time. Supporters hope this development will spur more companies to offer similar benefits. A federal ban-the-box measure was also part of the same legislative package.
Updated to reflect protections regarding salary history inquiries and removal of Westchester County salary history inquiry law, effective January 6, 2020.
Updated to reflect amendment clarifying the restriction on using an individual's arrest record, effective January 1, 2020.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.