Background Checks on Job Applicants

Employers often conduct background checks, but they do not have an unregulated right to dig into an applicant’s personal information. Inquiries should have relevance to the job applied for. For example, if hiring a security guard who will carry a weapon and be responsible for large amounts of cash, it would be considered reasonable for an employer to check for any criminal convictions.

Employees should ask for consent, in writing, to conduct background checks. This frequently is tucked into an employment application. As such, it becomes the reason why employers want you to fill an application out even if you submitted a resume. This tactic protects employers from claims that they unfairly invaded your privacy.

If an applicant refuses to consent to a reasonable request for information, the employer may legally decide not to hire the worker on that basis. However, employers can get into legal trouble if the request seems inappropriate.

What records are employers looking at when they conduct background checks? It can be any or all of the following: social security number, employment history, credit reports, school records, criminal records, driving records, and military service.

Employment History: Employers routinely like to verify your work history. They will often contact your former employers in an attempt to learn anything they can about you. Know that there is a wide range of what may be revealed in that communication. Many employers, concerned about lawsuits, may share very little and simply confirm your employment dates and job titles. Others may say a lot more. Finding out what might be said about you would be a prudent, proactive measure. You may even have some ability to negotiate with a past employer regarding this employment check.

Credit Reports: Under the Fair Credit Reporting Act, employers must get an applicant’s written consent before seeking their credit report. As stated earlier, many employers routinely include a request for consent in their employment applications. If an employer decides not to hire or promote someone based on information in the credit report, they are legally obligated to provide a copy of the report and let the applicant know of his or her right to challenge the report.

Bankruptcies: Federal law prohibits employers from discriminating against applicants because they have filed for bankruptcy. However, bankruptcies are a public record so it is easy for employers to obtain this information.

School Records: Under federal law and the law of some states, educational records including transcripts and financial information, are confidential. Because of these laws, most schools will not release records without the consent of the student. Some schools will only release records directly to the student.

Criminal Records: The law in New York state is that an employer is allowed to ask about criminal convictions but not arrests. New York state allows employers to consider convictions only if the crimes are relevant to the job. In some states, employers may consider criminal history only for certain positions (nursing, childcare work, private detective work, and other jobs requiring licenses, for example).

Workers’ Compensation Records and Health Information: An employer may consider information contained in the public record from a workers’ compensation appeal in making a job decision only if the applicant’s injury might interfere with his or her ability to perform required duties. As far as other health information is concerned, under the Americans with Disabilities Act, or ADA, employers may inquire only about an applicant’s ability to perform specific job duties and they may not request an employee’s medical records. An employer may not make a job decision (on hiring or promotion, for example) based on an employee’s disability, as long as the employee can do the job, with or without a reasonable accommodation. Some states, New York is one of them, also have laws protecting the confidentiality of medical records.

Military Service Records: The records may be released only under limited circumstances and consent is generally required. 

Driving Records: Records are available from a state’s motor vehicles department. They are not confidential and can be released without consent. An employer is considered to have a right to pursue such records if the job has a driving component.

(The above information is provided as a general overview. If you have significant and specific concerns about your background relative to an employer inquiry, a consultation with an employment-law attorney is highly recommended.)

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