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Are you looking to hire someone for a job, or promoting or reassigning a current employee and need to perform a background check? Are you applying for a job that requires a background check? Here are a few things you should know.

What is a background check?

Background checks allow employers to consult certain records before hiring a new employee.

Is a background check legal?

Here’s the deal: They feel invasive, but it is legal for an employer to conduct background checks on candidates and current employees. Background checks protect against hiring someone with fraudulent credentials and can help employers make more informed hiring decisions.

The most important thing to remember when conducting background checks or submitting yourself to one: the same standards should be applied to everyone. It is illegal to use a background check report to discriminate based on race, national origin, sex, color, religion, disability, genetic information*, or age. The Federal Trade Commission (FTC) enforces laws that control background reports for employment – this is who you contact if an employer orders a background check on you without your written consent. The Equal Employment Opportunity Commission (EEOC) enforces employment discrimination claims and can file lawsuits – this is who you go to if you think an employer has used findings in a background check report to discriminate against you.

*Genetic information – genetic tests, family members’ genetic tests or medical history. An employer cannot use this as a basis for an employment decision because it is not relevant to a person’s current ability to work.

What does a background check look for?

An employer may request a background check to look for specific criteria such as employment or education history or criminal records. Background checks may include, but are not limited to the following reports:

  • Drug testing
  • Credit history – businesses need written consent before running a check on an applicant’s credit history. Under the Fair Credit Reporting Act (FCRA), candidates can receive a copy of the report.
  • Criminal records – this is largely dependent on the state, for some criminal convictions can be reported indefinitely, in other states it is only 7 years. Civil suits, judgments, paid tax liens, etc. cannot be reported after 7 years.
  • Employment history verification – school records are confidential and can only be released with consent
  • Education verification – includes degrees, certifications and licenses
what does a background check consist of
  • Military records – certain information may be disclosed (such as name and rank)
  • Bankruptcy – bankruptcies are public record, and after 10 years are not legally considered in a background check
  • Driving records/motor vehicle records
  • Medical records (medical examinations may include blood and urine tests for drug testing, physical agility or physical fitness tests). The Americans with Disabilities Act makes discrimination based on medical history illegal.
  • Court records
  • Workers’ compensation records – workers’ comp appeals are public record. If an applicant was injured on the job and cannot perform the duties of the new position, these records may be used to make a hiring decision.
  • Reference checks

Keep in mind that checking these records is dependent on the organization and position you are applying for, as well as the applicable state or local laws.

How long does a background check take?

The consensus is the average time to complete a background check should be between two days and one week. Some may take longer if forms were not signed or were not completed correctly, other times it takes a little longer to track down records (especially if what they are looking for is not electronic).

Tips for Employers

Doing a Background Check

Before conducting a background check, you must:

  • Receive written permission from the candidate or employee indicating that they are aware that a  background check will be performed and that the  information may be used to make a decision about their employment.

If you should decide to make a negative decision – not hiring a candidate, not offering a promotion or firing an employee – based on something you find in the background check, you must:

  • Give the employee advance notice of your decision
  • Supply the employee with the contact information of the company that provided the report. A job candidate or employee has the right to review the report and correct mistakes should there be any.
  • Notify the candidate or employee that she or he has the right to dispute the report.
  • Make sure that reports are kept private and secure.
 Helpful tips for background checks

Tips for Applicants

Consenting to a Background Check

  • Current or potential employers do have the right to conduct background checks before they make decisions regarding your employment. You can refuse permission to have a background check completed, but the employer has the right to refuse your application based on that decision.
  • Keep in mind that background checks may vary based on company and position. Background checks are almost always required if you are applying for a position to work with children, the elderly or disabled. Many state and federal organizations require one as well.
  • Be prepared to explain anything negative that may appear on your background check and be able to explain why it will not affect your ability to perform the job.
  • Employers do not have the right to use your genetic information when considering you for a position. Medical history is applicable if a condition makes you unable to perform essential job functions. Check out more on the specifics of medical history concerning background checks on the EEOC’s website.
  • Rule of thumb - Don’t lie. If you have issues, try to fix them before applying.

*This is not intended to be taken as legal advice. Job candidates or employees that feel they have been discriminated against should seek outside legal guidance.