Employers conduct pre-employment background checks to reduce risks associated with hiring new employees. Background checks verify if the information included on an applicant’s resume and job application is truthful, they can also discover any criminal or drug abuse history. Background checks are essential to maintaining a safe workplace environment and improving retention rates by ensuring an employer understands who they are hiring. The background check process is regulated by federal laws to ensure applicants  have rights to their own information that could be used against them during the hiring process.

What are my rights during background checks?

What is the Fair Credit Reporting Act (FCRA)?

The Fair Credit Reporting Act (FCRA) is the federal law which regulates consumer background checks and background screening agencies. The FCRA was originally enacted in 1970 to help consumers dispute inaccuracies in their reports. This law has since been expanded to safeguard consumers throughout the background check process. As a consumer, it is important to know your rights during the background screening process.

What are my rights under the Fair Credit Reporting Act (FCRA)?

As the applicant, you have the right to know what information is included in your background check. It Is within your right to request a copy of any of your background check reports at any time throughout the process, and even a year after your background check is completed.

You have the right to consent to reports

Employers must obtain written or digital consent from you (the applicant) in order to initiate any part of your background screening process. Written consent from the applicant is required because the person pursuing the report must have a permissible purpose. Essentially, background screening can only be commenced for valid reasons such as for employment or applying for credit or insurance. 

You have the right to ensure accurate records and reports 

Once a report is generated, an applicant has a right to know what information is contained in it and if any of that information is used against them. Additionally, an applicant has the right to dispute any inaccurate information in the report. Consumer reporting agencies are required to recheck the disputed information at no extra cost, and rectify any inaccurate or incomplete information 

The right to know if the information returned from a background check negatively impacts your opportunity for employment

If an applicant is denied employment, they have the right to know if any information contained in the background screening report was used in the employment denial. Employers are required to disclose if the information obtained in the background check was used to make that decision. In addition to being granted access to the information contained in the report from the consumer reporting agency (CRA), an applicant is entitled to the name, address, and contact information of that agency. If the information on the report is confirmed to be inaccurate, the CRA is required to correct the report. For employers, it is crucial to work with screening agencies like APTOS Screening which are FCRA compliant.

What employers can request during a background check

Rules and regulations also apply to the types of information employers are allowed to request. 

Employers can request an applicant’s:

• Employment history 
• Education history
• Criminal history
• Motor vehicle history
• Other public records, including credit history

Employers are not permitted to ask about certain information as regulated by the Equal Employment Opportunity Commission (EEOC).  

To avoid discrimination,

employers are prohibited from inquiring about:

• Medical information (employers may ask for medical information only under specific conditions after they have offered you the job, but they are not allowed to ask for medical information during pre-employment background screening.)
• Genetic information
• Employers can ask about certain traits if they legitimately  relate to the position, but employers are not allowed to use race or gender to discriminate against applicants

Click here for the latest EEOC information.  

What are the consequences of FCRA non-compliance?

An employer can be hit with lawsuits resulting in significant financial penalties if they are not compliant with FCRA regulations.  This can be true even if the violations by the employer are unintentional or accidental.  Therefore, it is in the best interest of the employer to follow FCRA regulations when conducting background checks. 

Where to report inappropriate background checks

If an employer initiated a background check without an applicant’s written consent, shared that information without consent, or denied an applicant employment without providing them the required notifications, the applicant can report them to the Federal Trade Commission (FTC).

The information contained in this article does not, and is not intended to constitute legal advice.  All of the information is for general purposes only. 

In addition to federal regulations, each state has its own laws and regulations. Before you fill out an application, check the laws in your state.