Conducting pre-employment background checks, including criminal background checks, employment verifications, immigration status checks and sex offender registry searches, are an essential step in the hiring process. Although the information gathered in a pre-employment background check is of great use to an employer, this same information is often times highly sensitive, especially to the perspective employee.

In order to create a balance between catering to the employer’s needs while also protecting the employee’s privacy, federal and state governments have issued laws aimed at regulating and limiting the use of background checks and the information gathered by them.

For example, the Fair Credit Reporting Act, better known by the acronym FCRA, regulates the use of consumer reports as a basis of making adverse decisions. Consumer reports include any information collected and reported by a third party agent. In terms of the hiring process, according to FCRA, if a consumer report is to be a factor that plays into the making of an adverse hiring decision, the applicant must first be given a Pre Adverse Action Disclosure, a copy of the applicant’s individual rights under the FCRA, and a Notification of Adverse Action Letter.

In 1998 FCRA was amended as to the limitations it placed on criminal background checks as part of the pre-employment screening process. Before 1998, FCRA prohibited criminal record investigations from going back more than seven years unless the applicant would earn over $75,000 annually. The 1998 amendments removed this time limitation. However, many states still have laws that do place a time limit on how far back an employer can go in searching an applicant’s criminal record. Typically criminal record checks are limited to the past seven years.

Furthermore, the law requires that an employer using a background check as part of the pre-employment screening process use a consistent and legally compliant process. In order to do this, it is suggested that the employer specifically train hiring managers about the company’s background check policies. Further, all applicants for the same employment position should be screened using a consistent system. Once a background check is conducted and the results are provided, all the information should be carefully reviewed and fully documented. Developing a well-documented, consistent employee background check process will help ward off claim of illegal discrimination based on an argument that the background check is discriminatory as to race, age or gender. Other practices that are typically forbidden by law are automatically denying employment to any applicant with a criminal record or using a scoring policy to automatically eliminate applicants.

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