Background Check
A background check is a vetting process conducted by employers or third-party services to verify a job candidate’s qualifications, employment and education history, criminal and financial records, and other relevant information, requiring the candidate’s formal written consent before proceeding, to ensure the candidate’s honesty and suitability for the position.
What is a background check?
A background check is a vetting process for prospective employees, where an employer or third-party service investigates a job candidate’s past. The areas of inquiry differ from job role to job role and industry to industry, but they may include criminal history, education history, and financial status.
Once a candidate has been advanced through the initial screening and interview(s), they will have been evaluated by the employer based on information they provided on their application or resume, as well as their performance during the interview and other interactions.
Background screenings, along with reference checks, enable the hiring team to gather information about a candidate from people or institutions outside of the applicant.
The employer or third-party background check service may contact the candidate’s former employers, managers, and educational institutions. The background check will include employment history, education (including the validity of claimed degrees, licenses, and certifications), criminal records, credit history, motor vehicle history, and driver's license records.
Employers conduct background checks to ensure that an applicant:
- Is qualified for the position
- Did not lie on their application, resume, or during the interview
- Isn’t concealing serious wrongdoing including theft, fraud, harassment, violence, or negligence
Does the employer have to obtain the candidate’s consent to perform a background check?
In order to protect applicants, employers must provide applicants with a formal written disclosure and obtain consent before requesting a background check. The disclosure and consent form must be a separate document and can’t be included in the application. The employer must disclose that the information may be used to influence the hiring decision.
If a third-party service is used, after the employer obtains consent from the applicant, they must inform the background check company that they notified the candidate and obtained their consent. The employer must also verify that they complied with FCRA anti-discrimination provisions.
Laws that Regulate Background Checks
The Fair Credit Reporting Act (FCRA) regulates the use of consumer credit reports and other investigative reports by employers who hire third-party service agencies. The Federal Trade Commission (FTC) enforces the FCRA.
When a third party performs background checks, it may obtain information called “investigative reporting”, in which information about the job candidate may contain subjective judgment about a candidate.
How does the FTC define a “report”?
A report need not always be in written form. For example, a report could refer to information obtained in a short phone call that is communicated orally to the hiring manager in another short phone call.
An FCRA consumer report is “Any written, oral or other communication of any information by a consumer-reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living. In the employment context, this definition may, for example, include credit reports, criminal history reports, driving records and other background check reports created by a third party, such as drug tests.” (Society for Human Resource Management)
If you are requesting an investigative report on a person, you must also inform the applicant or employee of his or her right to a description of the nature and scope of the investigation. (EEOC)
Background screenings:
- Protect employees from violence or harassment
- Protect customers from theft or harassment
- Protect the business from fraud, theft, a tarnished reputation, or legal liability
Background checks are an important part of an employer’s due diligence when evaluating job applicants. Thorough background checks protect the business, the employees, the customers, and the public at large.
Related
Hiring Processes Glossary
The Hiring Processes Glossary defines talent acquisition as the comprehensive HR activities involved in sourcing, attracting, screening, and hiring candidates—including job analysis, creating job descriptions, posting jobs, conducting interviews, and negotiating offers—while explaining that the management of these tasks varies by company size, from owners in small businesses to HR departments or outsourced recruiters in larger enterprises.
Background Screening: How To Stay Compliant
The article emphasizes the critical importance of partnering with a knowledgeable background screening provider to navigate the complex and varying federal, state, and local regulations—such as the Fair Credit Reporting Act and Ban the Box laws—that govern when and how employers can conduct background checks and use applicant information to ensure compliant and effective hiring practices.
3 Things to Know About Employment Background Checks Right Now - ApplicantStack
The article emphasizes that despite recent delays due to pandemic-related backlogs and regulations, employers should continue conducting background checks—potentially using professional services to avoid costly bad hires—while also ensuring the process is efficient and candidate-friendly to maintain a competitive edge in attracting talent.
Georgia Fair Hiring Laws - WorkforceHub
The guide explains that Georgia's fair hiring laws include unique provisions such as the First Offender Act, which seals first-time offenders' criminal records from most background checks and prohibits discrimination against them, and a 2015 ban-the-box law for public sector employers that restricts when criminal history can be considered, highlighting differences from federal regulations enforced by the EEOC and DOL.
South Dakota Fair Hiring Laws - WorkforceHub
The South Dakota fair hiring laws, detailed in WorkforceHub's guide, largely align with federal regulations such as the Equal Pay Act and the Americans with Disabilities Act—with South Dakota applying disability protections to all employers regardless of size—but the state lacks a ban-the-box law restricting when employers can inquire about criminal history and does not have specific age discrimination laws, thus defaulting to federal Age Discrimination in Employment Act protections.
California Fair Hiring Laws - WorkforceHub
California's Fair Chance Act, effective since January 2018, is a state-specific "ban-the-box" law that prohibits most employers with five or more employees from inquiring about or considering a candidate's criminal history before making a conditional job offer, mandates individualized assessments of conviction records after such offers, and restricts the use of certain criminal history information, thereby imposing stricter hiring regulations than federal fair hiring laws.