Background Investigation Laws for Employment

Employers only have limited rights before digging into an applicant's past and personal life, as applicants have privacy rights. By knowing the limits regarding employment background investigations, an employer can prevent a lawsuit. The laws regarding the use of background investigations for employment purposes vary by state, so it is best for an employer to check with her state's Department of Labor for specific details.

Credit Reports

The website Business.gov states that employers must first get an applicant's written consent to run a credit check, as mandated by the Fair Credit Reporting Act (FCRA). If the results of the credit report are the basis for not hiring an individual, an employer must provide the individual with a copy of the credit report and an adverse action notice, according to the Bureau of Consumer Protection, and let him know about his right to challenge the report, as stated in the FCRA. Additionally, if any information in a credit report influences an employer's decision to not hire an individual, even if the information is not necessarily negative, the applicant is still entitled to an adverse action notice.

Criminal Records

Sometimes background checks are necessary in a company where a history of good moral character and honesty are key, or if employees work with specific populations, such as minors or seniors. The Federal Bureau of Investigation (FBI) is the entity that generally provides employers with information regarding an applicant's criminal history. Employers can also work with a local police department to learn if an applicant has a criminal history in the state or county. Before seeking information about an applicant's criminal history, an employer must first seek his permission to do so, in writing. In-depth criminal history searches may require an applicant's fingerprints. The extent to which an employer can use an applicant's criminal history varies by state, and Business.gov recommends employers consult with a lawyer before running this type of background check on applicants.

Medical Records

An employer can only ask about an individual's ability to perform job duties related to a job position. The Americans with Disabilities Act (ADA) states that an employer cannot make a request to see an applicant's medical records. Making a hiring decision based on an individual's disability is unlawful if the employee could still perform the duties necessary with or without reasonable accommodations. Some states have laws that protect the confidentiality of individuals' medical records.

Lie Detector Tests

Under the Employee Polygraph Protection Act (EPPA), most private employers cannot use lie detector tests as a method of pre-employment screening to learn about an individual's background. The exception to the EPPA is in the case of companies that provide guard or alarm services, armored car services or those that make or sell pharmaceuticals. Written honesty tests do not have any specific laws regarding their use, but they often violate federal and state discrimination and privacy laws. Additionally, lie detector tests are generally unreliable, so there is little point in employing their use.

References

• Business.gov; Pre-Employment Background Checks; January 2011
• Bureau of Consumer Protection Business Center; Using Consumer Reports: What Employers Need to Know; March 1999
• Federal Bureau of Investigation; FBI Criminal History Checks for Employment and Licensing
• U.S. Department of Labor; Other Workplace Standards: Lie Detector Tests; September 2009