Common Clauses

What goes into your Employment Background Check?

Aug 22, 2023

Most job offers are conditional on a background check, which looks into the potential employee’s education, employment history, and other records. While this step is common for companies, there are both federal and state-level laws that define what can be included, how that information can impact your employment, and when it can happen.

What goes into conducting an Employment Background Check?

There are federal laws enforced by the FTC and EEOC around how to conduct an Employment Background Check:

  1. Prior Notification: You must be notified in writing that the background check will be used for hiring, promotion, or firing.

  2. Prior Consent: You must provide permission in writing before the background check can occur.

  3. Right to Dispute: If your employer doesn’t want to hire you due to the report, they must provide you a copy of the report, a “Summary of Rights”, and contact information to the third party provider for your right to dispute the information.

Standard background checks can cover the below topics and typically go back between 7 - 10 years:

  1. Employment History

  2. Education Verification

  3. Credit Report

  4. Criminal Record

  5. DMV and Driver Record

  6. Drug Screening

  7. Social Media

  8. Military Service

  9. Reference Check

  10. Professional Certifications

What isn’t lawful when conducting Employment Background Checks?

Anything that goes against the above required steps of conducting background checks is unlawful. There’s also two classes of protected information:

  1. Medical History: Medical information cannot be included until after a conditional job offer, and even then, there are laws that require its relevancy to your job and protections against disability discrimination.

  2. Genetic Information: Outside of extremely rare and specific cases, your employer can never ask about such information.

Depending on the state or employer, there are further protections called “ban the box” law against criminal history discrimination. These laws prohibit asking about criminal history at the job application stage to provide a fair selection process.

  1. Federal Employment: US Government workers and federal contractors may not conduct a criminal history record until after a conditional offer has been made.

  2. State-Specific: States such as California and Hawaii have the same law, and set a the look-back period to 7 years.

  3. Arrest Records: 10 states, including California and New York, ban the consideration of arrest records entirely as an arrest without a conviction is not proof of guilt.

All state-level details are provided by the Collateral Consequences Resource Center.

A simple sentence mentioning background checks near the end of your offer letter may seem routine, but every routine has rules. You must be informed, you must provide consent, and you must have information provided to appropriately dispute any concerns. Every applicant must undergo the same check, and there are laws protecting what and when information is provided.

For advocacy and beyond,
The Ask Ginkgo Team

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