Labor and Employment

Do Job Applicants Have to Consent to Background Checks?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn whether a potential employer needs your consent before running a background check.

Many employers run background checks on applicants, especially if the open position will require the employee to handle money, sensitive or valuable items (such as drugs, jewelry, or weapons), or confidential customer information (medical records, credit card numbers, and so on). The law generally allows employers to look into your past before hiring you. However, you must give your consent before an employer can gather certain kinds of information. And the law limits how employers may use the results of a background check.

What Is a Background Check?

When an employer runs a background check, it looks at your history to make sure there are no signs of trouble. For example, an employer might look at your school transcripts to verify that you have the degree you claimed on your resume. An employer might do a criminal records check to see whether you have been arrested or convicted of any crimes. An employer might also want to look at your credit report, driving record, military service record, or court records.

Certain types of information are off-limits in a background check. For example, an employer may not gather your medical records. Your consent or release may be required before an institution or agency will release other types of information, as explained below.

When Is Your Consent Required?

If an employer does its own background checks, it may need your consent to get certain types of institutional records, including school transcripts and military records. For other types of information that can be found in public records (such as driving records and criminal convictions), your consent is not required as long as the employer gathers the records itself. (However, as discussed below, some states place limits on how and when employers may gather information about criminal history.)

If an employer doesn’t gather records on its own, but instead hires an outside agency or investigator to do its background checks, it must get your consent first. An employer must also get your consent before pulling your credit report. (In addition to obtaining your consent, the employer must also follow other requirements set out in the federal Fair Credit Reporting Act, including notifying you if you were denied employment based on something found in the report.)

If you don’t consent, the employer can’t run a background check through a consumer reporting agency or order your credit report. However, the employer can refuse to consider you for the job if you don’t give your consent.

How Employers May Use Background Checks

An employer may not necessarily use all information gathered in a background check. State and federal laws protect applicants from discrimination based on certain facts. For example, an employer may not make job decisions based on traits protected by federal law, such as race, color, national origin, religion, sex, disability, age (40 and older), or genetic information. State discrimination laws might protect additional traits, such as gender identity, sexual orientation, and marital status.) If a background check reveals, for example, that you emigrated from Israel or that you blog about having epilepsy, an employer cannot refuse to hire you for these reasons.

Applicants are also protected from retaliation for asserting their legal rights. Among other things, this means that a potential employer may not refuse to hire you solely because you accused a previous employer of discrimination or harassment.

State laws may also protect applicants from being denied a job for additional reasons, including:

  • Criminal records. A number of states limit the type of criminal history an employer may consider in making job decisions. Some states prohibit employers from considering arrests that didn’t lead to conviction, for example, or ban employers from asking about criminal records on a job application. (For more information, see State Laws on Use of Arrests and Convictions in Employment.) Because members of certain races are disproportionately likely to have a criminal record, blanket policies of excluding any applicant with a criminal record from consideration may also be discriminatory.
  • Credit reports. In response to the economic downturn in 2008, some states passed laws that prohibit discrimination based on credit history, at least in some circumstances. Learn more at State Laws on Employer Use of Credit Reports.
  • Unemployed status. A few states, including New Jersey and Oregon, prohibit employers from excluding applicants from consideration because they are unemployed when they apply for the position.

Questions for Your Attorney

  • Can an employer charge me for the costs of a background check?
  • Am I entitled to a copy of any report an employer gets from running a background check on me?
  • How can I tell if an employer used information against me illegally?

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