In general, employers are legally permitted to run background checks on job candidates. But there are restrictions under both federal law and various state laws. Being too diligent runs afoul of privacy and anti-discrimination laws. Being too lax leaves open the possibility for negligence in hiring or failing to live up to local standards. Straying too far in either direction leaves open the chance for legal misfortune.

- Required checks. Let's start with the basics. Almost every state requires that employers conduct criminal background checks on certain employees. The details will vary from state to state, but typical jobs that are subject to mandatory screening include security guards, police officers, health care workers, day care and other child workers, volunteers in schools, and home health care providers. The idea here is obvious: there are certain jobs where the potential danger is so high the state itself requires that employers screen out people who might cause harm to others. The newest trend here from states is to mandate that in employer who will send an employee into somebody's home (a repair worker or home appliance installation contractor) must conduct a criminal background check on those employees.

In recent years, the federal government has entered the mandatory background check business as well. For example, workers who have access to critical areas of our nation's infrastructure (ports, highways, airports, power plants, chemical plants) are coming under increasing requirements from the federal government to ensure that they do not pose a risk of sabotage or terrorism.

- Optional Checks. Employers have always had some freedom to conduct optional background checks on potential employees. Here there is more of a balancing act to play. On the one hand, employers are entitled to protect themselves. Entrusting the company payroll to a person with a long history of theft is not necessarily a wise business decision, and employers are entitled to take some measures to ensure that employees will not steal, vandalize, etc. Likewise, employers are entitled and sometimes required to protect the public. There is a growing trend of lawsuits for what is called "negligent hiring." Imagine an employer who hires a repeat home invasion rapist as a delivery driver to go from house to house. If the employee eventually falls back on his old ways, the employer might be liable to the home owner for having put the employee in the position to harm the home owner. As a result, employers have over time developed the legal right to consider a job applicant's criminal and financial history in making hiring decisions.

Are there limits? There are, and they are designed to make sure that job applicants are not being disqualified without fair notice or for things that are irrelevant. Employers should contact an employment lawyer for advice. First, the federal Fair Credit Reporting Act contains limitations on how an employer can collect and use this information. In addition, many states have additional requirements that employers must follow. For example, in some states such as New York and Washington, an employer can only make a hiring decision based on criminal convictions that are directly related to the job that the applicant is applying for. And it is almost always necessary to get the consent of the applicant before you go digging through their past (or at least notify them.)

This is an area of law that will vary from state to state. If you are an employer thinking about conducting a background check program, or an employee who has been checked on, a local attorney can help you make sense of your particular circumstances.

Learn more about this author, Sue A. Sponte.
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