By a Biometrica staffer
The short answer, yes. The longer answer is that yes, they can, but for most kinds of background checks, including obtaining a criminal background check report, running a credit check, or information on school transcripts, they need permission from you in writing to do so, on a standalone form. Could they look up other information without checking with you, including and not limited to your social media profiles? Yes, of course, and they typically do, but generally speaking, a responsible employer will get you to sign off on a form in any case, to prevent any whiff of a violation of privacy norms.
Additionally, in addition to federal guidelines on background checks, an employer has to be cognizant of state laws as to when they can run a background check on you and what checks they can run or what questions they can ask. For instance, 36 states and around 150 local jurisdictions have “ban-the-box” laws in place, which do not prevent employers from asking about your arrest or conviction record but do prevent them from asking until a certain stage in the employment process. This could be after the first interview, or only after you receive a conditional offer of employment. This is so a candidate can be assessed first based on his or her qualifications for the role, without any potential bias.
(Note: Do read this excellent piece by the team at the National Employment Law Project for more on this).
Various states and local jurisdictions (cities or counties) also have additional requirements. For instance, employers based in California cannot ask a job applicant about their salary history, though there are a couple of exceptions, for instance, if that history is already public information, or you have volunteered it. In addition, an employer cannot use any applicant’s salary history as a factor in determining either whether to make an offer of employment or what salary to offer.
Can You Refuse To Sign Off On A Background Check Form?
Technically, yes, but that’s a red flag for most employers, and you’re likely not going to be the top candidate. If there’s something in your past, for instance, an arrest or a conviction that a background check may reveal, it’s probably best to bring it up yourself if you’re further down in the process of being hired. Depending on what the arrest (if recent and in dispensation, i.e. the case is pending) or conviction was for, and what role you’re applying to, prospective employers may opt to treat situations on a case-by-case basis. An arrest or conviction for a violation of a fishing license has no bearing on most roles, unless you’re applying for one in a forestry or wildlife service or conservation job. An arrest — if under dispensation — or a conviction for a sex offense in any job where people may be “at risk,” or selling drugs, or aggravated assault is almost always a problem.
Under federal law, arrests that are more than seven years old cannot be included in a consumer report, unless the position has an annual salary of more than $75,000. There is no time limit for conviction records, but then it comes down to state law. Some local jurisdictions, however, have laws that prevent an employer from taking an arrest or conviction into consideration unless it applies to business necessity or job function.
Still, according to the EEOC, an employer may ask you for any kind of background information, “especially during the hiring process.” For example, some employers may ask about your employment history, your education, your criminal record, your financial history, your medical history, or your use of social media, depending on the role you’re applying for and state law regulating that in your state.
According to the EEOC, “Unless the employer is asking for medical or genetic information, it’s not illegal to ask you questions about your background, or to require a background check. (Employers aren’t allowed to ask for medical information until they offer you a job, and they aren’t allowed to ask for your genetic information — including family medical history — except in very limited circumstances).”
However, when an employer asks about your background, it has to treat you exactly the same as any other individual, regardless of your race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). “For example,” says the EEOC, “an employer is not allowed to ask for extra background information because you are of a certain race or ethnicity.”
What Does EEOC Guidelines Being Applied Equally To Criminal Records Mean?
When an employer treats criminal history information differently for different applicants or employees based on their race or national origin (disparate treatment liability), it will be considered a violation of EEOC guidelines. Further, “an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”
However, compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination. The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin. You can read more about applicability of this and what the EEOC and FCRA guidance on background checks say here.
What Do You Do If You Think That A Background Check Was Discriminatory?
You could contact the EEOC by visiting its website at www.eeoc.gov, or by calling 800-669-4000 (voice) or 800-669-6820 (TTY). The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest.
Here is more for specific information related to the following:
- Preemployment medical inquiries: see Preemployment Disability-Related Questions and Medical Examinations at www.eeoc.gov/policy/docs/preemp.html.
- Medical inquiries during employment: see Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) at www.eeoc.gov/policy/docs/qanda-inquiries.html.
- Genetic inquiries, including inquiries about family medical history: see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 at www.eeoc.gov/laws/regulations/gina-background.cfm.
- Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.
- Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance at csgjusticecenter.org/wp-content/uploads/2012/11/Reentry_Council_Mythbuster_Employment.pdf.
If an employer got your background report without asking your permission, or rejected you without sending you the required notices based on an consumer or investigative report, you could contact the FTC at www.ftc.gov, or by calling 877-FTC-HELP (1-877-382-4357) (voice) or 866-653-4261 (TTY). For further information, see the following links:
- What To Know When You Look For A Job at www.consumer.ftc.gov/articles/0269-what-know-when-you-look-job.
- Employment Background Checks at https://www.consumer.ftc.gov/articles/0157-background-checks.
- Employee Background Checks at www.consumer.ftc.gov/media/video-0026-employee-background-checks.
- Reentry Myth Buster: Criminal Histories and Employment Background Checks at csgjusticecenter.org/wp-content/uploads/2012/11/Reentry_Council_Mythbuster_FCRA_Employment.pdf.
- Disputing Errors on Credit Reports at www.consumer.ftc.gov/articles/0151-disputing-errors-credit-reports.
- Free Credit Reports at www.consumer.ftc.gov/articles/0155-free-credit-reports.