Are Background Checks Legal?

By James Parker
/
July 11, 2022

One of the standard procedures of the modern hiring process, a background check is a process that can be unequally nerve-wracking depending on the person submitting to it. While they are a routine procedure, background checks are neither infallible nor unerring. 

While the companies that sell background checking services may pitch themselves as the only way to truly know if a potential candidate is who they say they are, there are a number of logistical, technical, and legal circumstances that can lead to background checks being incorrect, outdated, or even illegal.

What is a Background Check?

A background check, as the name implies, is a procedure that investigates the history of a potential employee. While background checks are routine in most jobs, some jobs require a background check such as those that involve children or law enforcement.

There are a number of topics that a background check can cover. Some examples include:

  • Citizenship
  • Credit records
  • Criminal history
  • Driving records
  • Residential history

This is accomplished by verifying the candidate's social security number. Because so many services and processes use an individual’s social security number, it serves as a paper trail of what the individual has done and where they have been. The most common background checks are on a candidate’s criminal or credit history.

Criminal background checks are intended to reveal whether an individual’s name comes up in a criminal database, whether locally or internationally, as well as sex offender registries or civil court records. A criminal background check may include only guilty convictions, or it may include even having been arrested depending on the area and the service used.

Credit background checks will analyze information from credit reporting companies, bankruptcy courts, and other financial institutions. This may reveal the credit score of an applicant, whether they own property, or whether they have ever declared bankruptcy. Some companies may be interested in this information if the job deals with managing client finances.

Are Background Checks Accurate?

With so much weight being placed on background checks, it’s natural to ask whether this process is accurate. The unfortunate truth is, not always. There are a number of ways that background checks can be inaccurate that range from errors on the part of the employer to critical failures of the background checking company itself.

One of the simplest errors is entering the wrong social security number. An error of a single keystroke will return information that has nothing to do with the candidate and therefore will result in the check being completely false. However, even if the correct social security number is entered, there are other issues that can arise.

Sometimes the sources of the information are incorrect. There have been hundreds of reports of credit reports returning with incorrect information. Debts that have been paid off or that were not incurred by the candidate but instead by someone else with a similar name. Since these databases are maintained by people, simple human error can have drastic consequences. 

Similarly, criminal background checks can return information that is inaccurate. Reports have surfaced of candidates having criminal records of someone else linked to their social security number, to say nothing of the inaccuracies that arise from the aftermath of identity theft.

While these errors can take seconds to commit, they can cause problems for years without the candidate’s knowledge unless they regularly check their own background for errors. Even if an error is discovered, it can take years of arduous work to remove an error from an individual’s criminal or financial records.

Are Background Checks Legal?

In most circumstances, background checks are legal within certain limits. First and foremost, a background check can only be conducted after an employer gains written consent from the applicant. While the applicant does not have to give permission for a background check, the employer is allowed to refuse to hire the applicant based on that refusal.

While an applicant may not be able to refuse a background check, depending on the state that they live in, they may be afforded some protections about what can and cannot be revealed about them. Some states limit the scope of background checks depending on the industry is applied. 

Sometimes only certain types of records are accessible. Education records are generally obtainable in all cases while medical and military service records are almost always sealed. Other records, like worker’s compensation and bankruptcy records, aren’t inaccessible but it is unlawful in most cases to use these records to make an employment decision. Criminal records are a varied and complex subject for background checks.

Some states may allow arrest records to be shown on a criminal background check while other states believe that since they are not convictions they are too prejudicial. Additionally, even if a candidate has been found guilty of a crime there may be a limit on the length of time that it can show up on a background check. Nine states have a seven-year limit for a guilty conviction. Those states are:

  • California
  • Maryland
  • Massachusetts
  • Montana
  • New York
  • Texas
  • Washington

In some cases, this restriction is eased depending on the salary of the position. If a background checking company brings up a conviction that is meant to be sealed, that may be illegal and the company may be liable for the candidate’s loss of opportunity. 

Finally, it is always illegal to conduct a background check for discriminatory reasons. For example, an employer is not allowed to decide who to subject to a financial background check based on their national origin or who to subject to a criminal background check based on their religion. If an employer administers background checks discriminatorily, then they may be reported to the Equal Employment Opportunity Commission (EEOC).

Can Employers Get Around a Background Check?

While a background check can provide a large quantity of information from a number of sources, employers are not limited to just the confines of background checking companies. In the digital age, there are a number of ways that employers can find information about candidates.

One easy source of information about a candidate is social media. By searching an employee’s social media accounts employers can access a wide variety of information about the employee’s habits, beliefs, and expenditures. 

Employers can also access public information such as court records, driving records, property ownership records, state licensing records, or sex offender lists on their own without the use of background checking company. Since the information is public, there is not much an applicant can do to suppress this information. However, even if the information is publicly available, if the employer only searches these databases for members of a certain group, that is discriminatory and therefore unlawful.

If you have been subjected to a discriminatory background check, a check that accessed or compelled you to disclose protected information, or that violated your state’s privacy laws, you may be able to file a lawsuit in order to seek justice for the losses that you have suffered. By demonstrating how the background check was illegal, you may be able to receive compensation for your injuries. The best way to prevail in your lawsuit is with an Employment Law attorney.

An experienced Employment Law attorney can zealously advocate on your behalf in order to get you the best possible outcome for your case. Using their legal expertise, trial tactics, and expert witnesses, your Employment Law attorney will be able to gather evidence of your mistreatment and present that information in the most compelling way for your case. 

Don’t wait, contact AAL today and begin your journey to justice.

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