Background checks are routine for businesses vetting candidates during the hiring process. But it’s vital that employers follow the rules on what they can and cannot ask about, and it’s essential to understand what an applicant can ask about their background check and the rights they possess.
Below, we aim to clarify what job seekers and employers should expect when the background check conversation begins.
Is a Job Applicant Allowed to Ask About Their Background Check?
It’s not only acceptable, but it’s also a protected right under the Fair Credit Reporting Act or FCRA. When a job applicant applies, employers must ask their permission to run a background check. Should they request this, it’s the applicant’s right to ask for details on what will be under investigation. Applicants also have the right to request a copy of the background check report at any point during the process up to a year after completion.
Transparency should work both ways, and a team member should inform a job applicant before and after a completed background check.
What Questions Can Employers Ask During Background Checks?
Employers must be careful to ensure they only ask legally permissible questions. If you ask questions beyond your rights as an employer, it can leave you in legal trouble. Here are the key areas an employer may cover when checking an applicant’s background:
Employment History
Feel free to ask about an applicant’s employment history, as it’s directly related to the decision to hire them for the role they’ve applied for. Having insight into their work experience will help you determine if they have the knowledge and skills to quickly take on the role you’re filling. It also verifies that any employment history they’ve shared with you during the hiring process is accurate. Employment history information can include past job titles, positions, tenure, and reasons for leaving previous employment. Verification of earlier employers is often a part of this process, including emails or calls to confirm dates of employment and reasons for departure.
Education
Education is vital to understanding whether someone will be the right person for a role. While most people disclose education in a resume or applicant tracking system, you can’t always take their word for it. Confirming degrees and educational qualifications is crucial, especially for positions requiring specific academic backgrounds.
Criminal or Other Public Records
An employer can conduct criminal background checks in some states and specific positions. However, the FCRA requires that non-convicted criminal records in all 50 states be usable only for up to seven years. If you find an arrest record that did not result in a conviction that is eight years old or older, it’s inadmissible. For other legal issues or disputes, you may consult public records. However, this strict seven-year restriction from the FCRA also applies to collection accounts, Chapter 13 bankruptcies, civil judgments, civil lawsuits, and paid tax liens. Certain states may have additional limitations, so check with your state laws to ensure you remain compliant.
Financial History
For roles that involve handling money or financial investments, a team member may check bankruptcies, credit ratings, or other economic issues.
However, federal law allows credit report screenings in pre-employment screenings beyond roles at financial institutions. To obtain credit history information, the applicant must provide signed consent.
A credit report will show current and past credit card accounts, loan balances, credit limits, payment history, and information on liens, foreclosures, and bankruptcies.
What Rights Do Candidates Have When It Comes to Background Reports?
First and foremost, candidates have a right to consent to background reports. If an employer gets a background report on a candidate without express permission, they can contact the Federal Trade Commission (FTC).
They also have a right to know the name and contact information of the background reporting company and the right to dispute any information found on their report with the background reporting company if the information is incomplete or inaccurate. Further, they have the right to receive an additional report for free if requested within 60 days of the employer’s decision.
Any applicant who thinks an employer has discriminated against them during the background check process can contact the EEOC, which can investigate charges of employment discrimination and can sometimes file lawsuits in the public interest.
What Rules Apply to Background Check Reporting?
There are stringent rules and regulations that employers must follow in terms of the information they are allowed to request and report. The purpose of these rules is to inhibit discriminatory practices against applicants. Here are some key considerations:
You Can’t Ask for Additional Information Based on a Certain Factor
Discrimination during the hiring process is illegal. Employers cannot request additional information due to a candidate’s age (if over 40), race, national origin, sex, gender identity, religion, disability, or family history. You must treat all applicants the same regardless of all these factors.
You Can’t Ask About Medical or Genetic Information
The Americans with Disabilities Act (ADA) Title I prohibits employers from asking about medical conditions or requiring medical examinations before a job offer is made. In limited circumstances, you can request an employee’s medical information only after the job offer is accepted or after employment begins.
The Genetic Information Nondiscrimination Act (GINA), set forth by the EEOC, also prevents employers from asking about genetic information when making employment decisions. Only in certain situations can employers ask about genetics.
You Must Tell Applicants You May Use Background Information
As an employer, you must inform applicants in writing if you plan to use information from a third-party background check to make employment decisions. A team member can only legally run a background check with the applicant’s consent.
You Must Give Applicants a Copy of Their Report and Summary of Rights if Adverse Action Is Taken
If any information in a background check leads to an adverse action, such as a refusal to employ the person, they must provide a copy of the background check report used to make the decision. You also must give them a copy of their “Summary of Rights” that explains the applicant’s rights according to the FCRA.
You Must Get Permission to Share the Report
Any HR department or recruiter must get an authorized signature before sharing a background report with any third party without written consent from the candidate or employee.
Frequently Asked Questions
Is It OK to Ask About the Status of a Background Check?
Yes, an applicant can ask to see their background check results from the agency that conducted it at any time during the process and up to one year after employment begins.
Can You Ask a Candidate About Their Background Check Results?
While employers can ask about the results, the standard procedure is to provide the applicant with a copy of the background check report and allow them to explain discrepancies or dispute inaccuracies, incomplete information, or other issues found in the check.
Final Thoughts
Transparency and fairness should be standard throughout employment, from hiring to background checks. For employers looking to streamline this process while ensuring all regulations and laws are adhered to, ScoutLogic’s comprehensive suite of background check services can help mitigate risks and optimize the hiring process.
David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.
David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.
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