Navigating the Legal Nuances of Background Checks


With more and more businesses today ensuring they are making the best possible hires by conducting background checks, the details and stipulations have since become much more demanding. With more programs like ‘Ban the Box’ and ‘adverse action’ arising to offset the sometimes complex aspects of background checks, companies that conduct them must understand the legalities that come with those in order to avoid troubles down the road.

To start, adverse action is what employers must adhere by after denying an applicant employment because of the results following a background check. This is also applied to reassignments or denial of promotion. Before you make a decision, you must notify the applicant or employee that the process is underway, along with a summary of rights from the Fair Credit Reporting Act.

Once five days have passed, depending on whether or not you choose to hire or reject the individual, a notice must be sent that includes reasoning and a way for the background check to be accessed by the applicant, along with the background check company’s contact information.

Though ‘ban the box’ laws are not active in every state, those that do enforce this campaign ask employers to consider applicants despite their criminal histories in order to reintroduce them to the working world. It has been regarded as somewhat controversial considering the fact that many companies refrain from hiring those who have criminal pasts, but denying them simply because of this in a state that enforces this program can result in a plethora of legal complications.

Notify a candidate prior to an interview that a background check may or may not be conducted, and whether or not your city has any specific stance on banning the box. The only careers void of this campaign are those in law (police officers) and childcare. However, these laws vary by state, so be sure to fully understand your specific state’s policies.
Always remember that the Fair Credit Reporting Act is what you should constantly refer to for any clarification. The process for adverse action is required under every circumstance, but the details may differ from state to state. Once all legal requirements are understood, be sure to provide the best possible screening process for your applicants and employees you can.