Employment Background Checks

Background Check Laws

There are no specific, Federal, "employment background check laws" per se. However, the Federal Fair Credit Reporting Act (FCRA) compensates to a degree by generally setting confidentiality, accuracy, relevancy, utilization and dispute standards for reports issued by consumer-reporting agencies, such as those that conduct employment background checks.

The Federal Bankruptcy Act also compensates to a degree for the absence of specific, Federal, background check laws; for example, the employment-related provisions of the Bankruptcy Act make it unlawful for employers to discriminate against employees because of bankruptcy or the bad debts they had before filing for bankruptcy.

Federal discrimination laws might also function as background check laws to a degree; for example, employers can't use bad credit reports as a guise to disproportionately discriminate against low-income minorities, single mothers or disabled persons in any aspect of employment.

At the state level, defamation laws work as background check laws too, in that they protect employees from malicious libel and slander by former employers. State laws prohibiting discrimination might also function as background check laws to some degree, the same as the Federal equivalents mentioned above.

Many states have enacted background check laws or those with equivalent provisions, such as civil rights or credit check laws. But, generally, state background check laws or equivalents only somewhat limit the type of information that employers may disclose about employees.

Some state background check laws or equivalents at least require employers to get employees' written permission before disclosing or investigating certain information, and restrict to what degree employers may make employment decisions based on such information.

However, "certain information" is typically limited to criminal record check results; for example, employers might be restricted to considering only criminal convictions, not arrests without convictions, and only if convictions are directly related to the jobs in question.

Your state's Attorney General's office or a criminal attorney can tell you the extent to which employers may consider criminal records for employment decisions, under your state's background check laws or equivalents. To locate the Attorney General's contact information, look in the state government pages of the local phone directory or check the list maintained by the NAAG.

Some state background check laws or equivalents also require employers to write service letters for former employees, to help ensure that neither employers nor former employees change their stories. Service letters must disclose certain aspects of employment, such as work history, pay and reasons for employment termination or discharge.

On the other side of the fence, many states have also enacted background check laws or equivalents that allow employers to speak candidly about former employees within the confines of the laws.

For example, several states shield employers from defamation lawsuits for disclosing truthful facts about employees, as long as the facts are specifically about job performance and reasons for discharge. A few states shield employers for disclosing any truthful facts about employees, as long as they are employment-related facts.

Despite background check laws and equivalents that protect employees, it's not uncommon for employers to overstep their bounds.

If you think that an employer or investigative agency overstepped its bounds, or if either failed to inform you of your rights or ask your permission when required under background check laws or equivalents, seek the advice of an attorney to help you determine whether or not you have legal recourse.

An attorney referral service will help you choose the right type of lawyer located near you. Don't delay for long, as a statute of limitations likely applies.

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