While an employer may have reasons for wanting to do a background check, as a potential employee, you also have rights and an expectation of privacy. For many types of information, an employer needs to get your written permission before they can get information about you. Once an employer has information about you, they must inform you if they take any adverse action against you because of that information. Additionally, an employer cannot use any of the information in a discriminatory manner. For more information about your rights concerning background checks, read below:
While the laws vary between states, typically an employer can perform a background check. A 2018 survey found that 95% of employers report conducting one or more types of employment background screening. In fact, for some jobs, like any job that involves working with children, employers are required to perform background checks. It is legal for employers to inquire about an applicant’s background, however there are certain restrictions on questions about medical and genetic information. Additionally, employers are prohibited from using the information obtained in ways that deny equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact. Some of the most common information an employer checks is:
- Credit history
- Driving record
- Criminal record
- Court records
- Drug tests
- Past employers
- Sex offender lists
- School records
- Medical records
For a lot of information, like your school transcripts, medical records, or military service records, your employer needs permission first. An employer also needs your permission if they use an outside agency to gather any background information. If an employer gets your background report without your permission, you can contact the Federal Trade Commission (FTC).
However, employers can find out a lot about you without needing your permission just by typing your name into Google. When applying for a job, make sure to Google yourself so you know what shows up and can attempt to fix any wrong or unfortunate information.
The main federal law is the Fair Credit Reporting Act (FCRA). This law is enforced by the Federal Trade Commission (FTC). The FCRA regulates outside reporting agencies, consumer reporting agencies. If an employer wants a background check from a consumer reporting agency, then special rules apply. Before getting the report, the employer needs your written permission. If an employer then takes any adverse action against you because of the report, like refusing to hire you or firing you, you are entitled to a copy of the background check used and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” as well as an opportunity to respond to the allegations and correct any incorrect information.
Yes, you can get your credit report whenever you want, but you may have to pay for it. However, you can get the information for free if:
- a person has taken adverse action against you because of information in your credit report;
- you are the victim of identity theft and place a fraud alert in your file;
- your file contains inaccurate information because of fraud;
- you are on public assistance; or
- you are unemployed but expect to apply for employment within 60 days.
You are also entitled to one free credit report every 12 months, which you can request at annualcreditreport.com or one of many other credit reporting websites.
Once you review your credit report, you can dispute any errors with the credit reporting company.
If the information in your credit report is wrong, the FTC, which enforces the FCRA, suggests you write to the credit reporting company as well as the information provider for the credit reporting company. The FTC has more information, as well as sample dispute letters, on the FTC consumer webpage.
As for old information, a credit report company typically cannot report on any negative information that is seven-years-old or older, or ten-years-old or older in the case of bankruptcies.
Maybe not as much as you would expect. According to the U.S. Equal Employment Opportunity Commission (EEOC), the use of criminal history may sometimes violate Title VII of the Civil Rights Act of 1964. There is also a growing campaign known as Ban the Box that is convincing states to pass laws that push back background checks into later in the hiring process and remove the question about past criminal convictions on job applications. You can read more about Ban the Box and criminal records in general at our Criminal Records page.
Like background checks in general, while the laws vary between states, employers generally can perform drug tests, and in some cases are required to do so. However, an employer’s drug testing policies must be written down, accessible to employees, and applied equally to all applicants and employees. You can read more on this topic at our Drug Testing.
An employer could have several reasons to want to view your medical records. There could be a legitimate business reason, like the job requiring a lot of physical activity. Or an employer may need to provide information to the company healthcare provider. If an employer makes an employment decision based on information about a medical condition, you still can request a chance to demonstrate that you are able to do the job. No matter what the reason, you have rights in this area, including the federal Health Insurance Portability and Accountability Act (HIPPA). To learn more about the HIPPA and medical privacy in general, you can read our Medical Privacy page.
You do have a right to privacy. If you feel as though your employer has violated your privacy, you should contact a lawyer. Workplace Fairness can help you find an employment lawyer.
As for whether or not an employer has violated your privacy, courts use a balancing test. First, a court will look at your reasonable expectation of privacy in the area of the background check. For example, you have a higher reasonable expectation of privacy for your medical records than for what you post on social media. Second, a court will look at the reason the employer conducted the background check. Those two are then weighed against each other to determine whether or not an employer has crossed the line.
In a situation like this, the more relevant law may be discrimination law as opposed to the laws about background checks. The Equal Employment Opportunity Commission is the federal agency responsible for enforcement in this area. When an employer inquires about your background, the employer must treat you the same as everyone else, regardless of your race, national origin, color, sex, religion, disability, genetic information, or older age. Even if the employer treats you equally, using background information still may be illegal discrimination. For more information, review Workplace Fairness’ in depth section on employment discrimination.