Q. “We currently do not have a written policy that says we perform background checks before an employee is hired. We’d like to start implementing one. Am I allowed to state on the job posting that a background check will be performed and employment will be contingent on it? If so, how would I word it? — Star, Florida
A. As recently as a decade ago, a reference check to prior employers was all many employers required before hiring a new worker. Today, background checks–typically including a search of the applicant’s criminal record and sometimes including a check of the applicant’s credit–are becoming the norm. Background checks also are increasingly required of individuals who will be performing services on a contract basis for an employer as a vendor.
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Both federal and state laws may affect your background-checking practices. At the federal level, the Fair Credit Reporting Act (FCRA) governs background checks when performed by a “credit reporting agency,” which, for purposes of this discussion, is likely to be any commercial background checking service with whom you elect to contract to perform this service on your behalf.
The FCRA requires employers to provide applicants (and employees) with:
- Notice of their intent to conduct a background check
- A Federal Trade Commission publication summarizing their rights under that law
- Pre- and post-adverse action letters if the employer elects not to hire the individual or to take other adverse employment action based on the outcome of that check.
Several states have adopted similar laws, and you should be careful to ensure that documentation you use authorizing background checks meet any applicable state requirements.
The Equal Employment Opportunity Commission (EEOC) and most state agencies with similar missions discourage employers from basing employment decisions on arrest records that did not result in a conviction, on the ground that certain racial minorities are much more likely to be arrested than are whites. Some state laws also prohibit employers from acting on the basis of an arrest, or from refusing to hire an applicant because of a very old conviction or one for a crime that bears little relevance to the employee’s fitness for the type of work at issue.
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In summary, it’s important to be familiar with the laws of your jurisdiction as you develop your background checking policy, and to comply with federal and state notice laws where applicable. For the job application, it may be enough to say “All offers of employment are contingent upon successfully passing a background check. A history of arrest or conviction will not necessarily disqualify you from being offered employment.”
When you make an offer contingent upon passing a background check, you can obtain the applicant’s authorization at that time. If, however, you wish to ask applicants to reveal their arrest and conviction history directly on your employment application, I advise that you obtain advice on the laws of the states in which you have operations to ensure that any additional required notices are included there and to determine what types of information may lawfully be considered in those jurisdictions as you evaluate the application.
