Fact Sheet 16c:
FAQ on Employment Background Checks


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Copyright © 2006 - 2014
Privacy Rights Clearinghouse
Posted October 2006
Revised October 2013

The PRC does not perform background checks.

See also these PRC background check guides:

  1. Does Privacy Rights Clearinghouse do background checks?
  2. Can the Privacy Rights Clearinghouse recommend a background check company?
  3. How much does a background check cost?           
  4. Will my old conviction, probation, or arrest show up on a background check?
  5. Will a criminal record automatically disqualify me from ever getting a job?
  6. I am an independent contractor. What are my rights if my employer wants to do a background check?
  7. Can an employer evaluate my credit as a condition of employment?
  8. I am a long-term employee. Can an employer now do a background check?
  9. What can I do if I was denied employment because of a background check?
  10. Does the Fair Credit Reporting Act restrict what an employer can ask on my application?
  11. What do I do if the information on my background check is inaccurate?
  12. If a background checking company deletes inaccurate information, does the employer have to re-instate a job offer?
  13. How can I get a copy of my background check?
  14. May an employment report include medical information?
  15. I am applying for a job in a profession that is required by law to perform background checks, such as in law enforcement, childcare, or a hospital. Will this affect my rights under the Fair Credit Reporting Act?
  16. Does a nonprofit organization have to follow the FCRA when screening volunteers?
  17. I want to file a lawsuit against a background check company for reporting inaccurate information on my background check, because it cost me my job. What should I do?
  18. Is it legal to fire someone based on information in a background check?
  19. I am a California resident. Will my conviction from more than 7 years ago show up on a background check?
  20. I applied for a job through an employment agency. Can I get back my personal information from them now that I have another job?

1.  Does the Privacy Rights Clearinghouse do background checks?

No. Here is a link to a national association of employment screeners. Members must follow the Fair Credit Reporting Act and meet certain standards. You will find a list of members on the site. www.napbs.com/

2. Can the Privacy Rights Clearinghouse recommend a background check company?

No. The Privacy Rights Clearinghouse does not recommend companies. However, here is a link to a national association of employment screeners. Members must follow the Fair Credit Reporting Act and meet certain standards. You will find a list of members on the site. www.napbs.com/

3.  How much does a background check cost?

Background checks vary significantly in price depending on a number of factors, including: the comprehensiveness of the search, what types of background information is sought, and the number of background reports that the company or agency has the screening company conduct each year (usually prices are lower per search when a high volume of reports are conducted per organization).

4.  Will my old conviction, probation, or arrest show up on a background check?

It depends. What can be reported on a background check depends on a number of factors, such as the kind of job, salary, and whether the employer does the check or hires a third party screening company. These are just a few of the things that can factor in. Federal law allows the reporting of criminal convictions indefinitely. Your state may offer more protection. To find out more about protections your state may offer, contact your state fair employment agency. The following Web site lists fair employment agencies in the 50 states: http://www.thelaw.com/guide/employment/list-of-state-fair-employment-practices-agencies/.

If you have a court record, check the court record yourself to see how this matter appears. You can go directly to the court involved. In most states, criminal records are compiled by the state’s Department of Justice. For a directory of the Attorneys General in all 50 states, visit www.naag.org. For California, check the Attorney General's Web site.http://ag.ca.gov/contact.php

If you are unsure what an expungement, deferred adjudication, or sealing means with regards to your background check, be sure and ask the court clerk how your record will appear to the public. Below are general definitions of those terms and other common outcomes (but please note that some details may vary according to your state’s criminal law):

Expungement.  Often equated to the sealing or destroying of legal records. Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. But the records may not completely "disappear" and may still be available to law enforcement.
For more on expungement, visit www.epic.org/privacy/expungement.

Deferred Adjudication. After a defendant enters a plea of guilty to the court, the judge may defer (postpone) the actual finding of guilt and place the defendant on a probationary term. During this time, the defendant abides by the same probation rules as a regular probationer, and if there are no violations during the probation term, the case will then be dismissed without the defendant ever having been found guilty of the offense

Sealing. Generally means to close a criminal record, make unavailable, confidential, or exempt from public record.

5. Will a criminal record automatically disqualify me from ever getting a job?

No. The Equal Employment Opportunity Commission (EEOC) says that a person cannot be denied employment based on a criminal record alone. Instead, the decision to hire or not must be based on a “business necessity,” which requires the employer to consider:

  • The nature and gravity of the offense or offenses.
  • The time that has passed since the conviction and or completion of the sentence.
  • The nature of the job held or sought.

EEO laws apply in employment situations whether the employer hires a third-party screening company or not. The Fair Credit Reporting Act (FCRA) requires compliance with EEO laws.

6.   I am an independent contractor. What are my rights if the employer wants to do a background check?

The Federal Trade Commission staff has issued a couple of opinion letters about contractors and the Fair Credit Reporting Act.

Allison Letter. www.ftc.gov/os/statutes/fcra/allison.htm  The letter (which is a staff opinion only and not binding of the FTC), said that a trucking operation that uses consumer reports to evaluate whether to hire truck drivers must comply with the provisions of the FCRA pertaining to consumer reports, including the disclosure and authorization provisions.

The letter goes on to say that even a homeowner who is considering hiring an individual to perform services for the homeowner is indeed required to comply with the FCRA when obtaining a "consumer report" on that individual. Like any employer, the homeowner must abide by the applicable disclosure and authorization provisions like any other employer.

Solomon Letter. www.ftc.gov/os/statutes/fcra/solomon.htm  This letter further explains that the FTC staff subscribes to the view that the term "employment purposes," as used in the FCRA, should be interpreted broadly.

Background screening for volunteers may also come under the broad interpretation of “employment purposes” when an organization engages a “consumer reporting agency.”

7. Can an employer check my credit as a condition of employment?

Generally, yes.  An employment background check often includes a copy of your credit report. The three major credit reporting agencies (Experian, TransUnion, and Equifax) provide a modified version of the credit report called an "employment report." An employment report includes information about your credit-payment history and other credit habits from which current or potential employers might draw conclusions about you.

An employment report provides everything a standard credit report would provide. However it doesn't include your credit score or date of birth. Nor does it place an "inquiry" on your credit file that may be seen by a company looking to issue you credit. Having too many credit inquiries tends to lower your credit score.

For more information on how your credit report can affect your job see Part 7 of Fact Sheet 16, available at: www.privacyrights.org/fs/fs16-bck.htm#7

Several states have laws that limit the use of credit-related information for employment purposes.  For specific information about these state laws, read http://www.esrcheck.com/States-with-Laws-Regulating-Credit-Reports-for-Employment.php.

8.   I am a long-term employee. Can an employer now do a background check?

Yes. The Fair Credit Reporting Act authorizes employers to check both applicants and current employees.

9.   What can I do if I was denied employment because of a background check?

An employment background check conducted by a third-party screening company (not the employer) is subject to the Fair Credit Reporting Act. You can dispute information with the screening company just like you would with a credit bureau. If an employer turned you down because of something in your report, you should have received a letter along with instructions on how to get your report and how to dispute inaccuracies.

Again, this process only applies to companies that perform screenings for employers. If the employer, for example, checks public records itself and finds something about you on its own, you do not have the same rights under the FCRA. So, the important question is, who did your background check. You may also want to check public records yourself by going to the local court that provided the information to the background check company. See what the official court record says. If it's wrong or incomplete ask the clerk of court how to make corrections.

State laws may offer greater rights when it comes to obtaining public record information used to make an employment evaluation. For example, a California employer that obtains public record information, from any source, must give the employee or job applicant a chance to receive a copy of public records 

 

10.   Does the Fair Credit Reporting Act restrict what an employer can ask on my application?

No. The FCRA does not prohibit an employer from asking questions in an employment application. For example, an employment application might ask if you have "ever" been arrested. The FCRA says a consumer reporting agency cannot report an arrest that from date of entry was more than seven years ago. It does not say the employer cannot ask the question.

How to handle such questions on an employment application is of real concern to many people, especially those worried about a youthful mistake from the distant past.

State employment laws may limit the questions an employer includes on a job application. For example, in California an application may ask "job related questions about convictions except those that have been sealed, or expunged, or statutorily eradicated," but applications cannot ask "general questions regarding an arrest." http://www.dfeh.ca.gov/res/docs/Publications/DFEH-161.pdf

It is important to remember, however, that even the restrictions on reporting imposed by the FCRA do not apply to jobs with an annual salary of $75,000 or more a year. (FCRA §605(b)(3)).

11. What can I do if the information on my background check is inaccurate?

If your employment background check includes inaccurate information, you should file a dispute in writing with the company that prepared the report. The company has 30 days to investigate your dispute. You should receive a written notice of the results not later than five business days after the investigation is completed.

To correct the error, you need to go to the source of the inaccuracy. This may be a court or a credit issuer. There are many different background check companies and fixing the inaccuracy with one company will not prevent another company from finding the same inaccurate information the next time.

12. If a background checking company deletes inaccurate information, does the employer have to re-instate a job offer?

No. The FCRA does not obligate an employer to act upon a corrected report.

13. How can I get a copy of my background check?

If the employer uses information from the consumer report for an "adverse action" -- that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion -- it must take the following steps:

Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure." This includes a copy of the report and an explanation of the individual's rights under the FCRA.

After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain the name, address, and phone number of the employment screening company, a statement that this company did not make the adverse decision, rather that the employer did, and a notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

In addition, you can get a free employment report directly from the screening company. For more on free employment reports, see PRC Fact Sheet 6b, www.privacyrights.org/fs/fs6b-SpecReports.htm#8 .

14. May an employment report include medical information?

The FCRA imposes specific obligations on employment screening companies. Medical information supplied for employment purposes requires your specific written consent and must be “relevant” to the employment. An employer may also ask you to take a pre-employment physical. If so, the Americans with Disabilities Act requires such requests be made only after a job offer.

15. I am applying for a job in a profession that is required by law to perform background checks, such as in law enforcement, childcare, or a hospital. Will this affect my rights under the Fair Credit Reporting Act?

Maybe. When a specific law requires a background check, that same law usually outlines the rights employees have. These rights may not necessarily follow the Fair Credit Reporting Act, the background screening law that governs "consumer reports."  However, if a third-party screening company is hired, the FCRA would apply.

Law enforcement agencies or state licensing authorities may have direct access to state and federal criminal records databases, which many private employers do not have. A government-run database is not a consumer reporting agency and is not subject to the FCRA. Whether you have a right to get your report or make corrections may be spelled out in the background check forms you signed or perhaps on the agency's Web site.

However, individuals are generally allowed to access their own criminal records files maintained by a state or federal agency. To access your state’s criminal records data files, contact your state Attorney General. The federal Privacy Act also gives you the right to request records maintained about you. To check federal criminal records, contact the Federal Bureau of Investigation, www.fbi.gov

16. Does a nonprofit organization have to follow the FCRA when screening volunteers?

Yes, if the investigation is conducted by a consumer reporting agency. Some nonprofit organizations are allowed direct access to state or federal criminal data bases. This is especially true for those organizations where employees and volunteers work closely with children, the elderly, or the disabled.

17.  I want to file a lawsuit against a background check company for reporting inaccurate information on my background check, because it cost me my job. What should I do?

You should contact an employment or consumer lawyer to discuss your situation. An employment lawyer can be found through the Web site of the National Employment Lawyers Association, www.nela.org. A consumer attorney can be found through the Web site of the National Association of Consumer Advocates, www.naca.net

18. Is it legal to fire someone based on information in a background check?

We are not attorneys. This may depend on a number of factors such as your state laws, the type of job, whether the job offer was contingent upon passing a background check.

An attorney is in the best position to consider the overall situation and advise you. You may find an employment law attorney through the Web site www.nela.org  or though your local attorney referral service, generally listed in the telephone directory.

19. I am a California resident. Will my conviction from more than 7 years ago show up on a background check?

It depends. The California state law governing this issue is California Civil Code Section 1786.18 which states that:

Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:

  • Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, predate the report by more than seven years.

In addition investigative consumer reporting agencies may not report convictions that have been pardoned or arrests that did not result in a conviction. Arrests may be reported pending pronouncement of judgment.

Subdivision (b) says that the seven-year rule does not apply:

  • If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are otherwise prohibited.

Based on this law, you need to ask yourself several questions to determine if the seven-year rule applies to you.

  • Is an investigative consumer reporting agency conducting the background check OR is my potential employer conducting its own check?
  • Is the type of job I am applying for explicitly required by law to check for records that would otherwise be prohibited by state law?

Important Note: A court found that the above law is unconstitutionally vague.  Pending clarification of this decision, our answer may no longer be accurate.  See Jane Roe v. LexisNexis Risk Solutions Inc. (U.S. District Court, Central District of California, March 19, 2013). Appeal filed in Case No. 13-55658 (U.S. Court of Appeals, Ninth Circuit, April 19, 2013).

20. I applied for a job through an employment agency. Can I get back my personal information from them now that I have another job?

It depends primarily on who did this background screening. Job applicants and employees who are screened by a third-party, commercial screening company have certain rights under the federal Fair Credit Reporting Act. The FCRA says you are entitled to get a copy of your employment report from the screening company. For more on employment reports and how to get a free copy of your information, see Fact Sheet 6b "Other" Consumer Reports: What You Should Know about "Specialty" Reports.

However, a screening company may not always keep information after a background check is issued. The FCRA does not say that an employment screening company has to keep information for a certain period of time. Nor does it say the screening company has to return the information to you, just that you are entitled to a copy. The FCRA does require that screening companies properly dispose of information collected about you.

If the personal information involved was gathered by the employment agency itself or the potential employer and not a background screening company, that situation would not be subject to the FCRA. For example, the agency may have gathered information on a job application or conducted a check of court records. If that’s the case, it’s possible there’s something in your state employment laws that says the employer has to return information to you or to at least give you a copy of what’s on file. To find out if there is a law covering this situation in your state contact your state employment agency (If you’re in California, that would be http://www.dfeh.ca.gov/Default.htm). And, if you haven’t done so, you should ask the agency to return your information. Even if they don’t have a legal obligation to return your information, it would seem they have nothing to gain by keeping your information when you already have a job.

Copyright © Privacy Rights Clearinghouse. This copyrighted document may be copied and distributed for nonprofit, educational purposes only. For distribution, see our copyright and reprint guidelines. The text of this document may not be altered without express authorization of the Privacy Rights Clearinghouse.


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