Employer Background Checks and Your Rights

What Employers Can Ask About Your Background

When employers ask you about your background, they must treat you the same as other applicants — regardless of your race, national origin, color, sex (including pregnancy, sexual orientation, gender identity, and transgender status), religion, disability, genetic information (including family medical history), or age (if you’re 40 or older).

Employers aren’t allowed to ask for extra background information because you are, say, of a certain race.

There are also rules about the types of questions employers can ask you:

Employers cannot ask you about or check your background for your

• medical information if they haven’t offered you the job. Employers may ask you for medical information in limited circumstances either after they’ve offered you the job, or after your employment begins.
• genetic information, including your family medical history (except in limited circumstances)

Employers might ask you about or check your background for your

• employment history
• education
• criminal or other public records, financial or credit history, and public social media activities

Some employers might say not to apply if you have a criminal record. That could be employment discrimination. If that happens to you, contact the Equal Employment Opportunity Commission (EEOC). Find more information on arrest and conviction records in employment decisions at the EEOC website.

Laws in your city or state might impact if or when employers can ask you about and run a background check for your criminal or credit history. Here are some things to consider:

• Before you fill out an application, it's a good idea to check the laws in your state.
• A criminal history might not stop you from applying for or getting a job. For example, the majority of federal government jobs allow people with criminal records to compete for employment.

Background Reporting Companies

When employers hire a background reporting company in the business of compiling information on people's background and history, certain rules apply: 

• The employer must tell you they could use the information to make decisions about hiring, promoting, or firing you. They must give you this information in writing and in a standalone document. They must also get your written permission before asking the company to run a background check.

• An employer must take certain steps before they decide not to hire, keep, or promote you because of something in the report. They must give you a copy of the report and a “Summary of Rights” that tells you about your rights under the Fair Credit Reporting Act.

If You’re Turned Down for a Job or Promotion

There are times it’s legal for an employer to deny you a job or a promotion based on information in your background report. Other times, the employer’s decision to deny you a job or a promotion might be based on discrimination. If you don’t get a job or a promotion because of information in your background report, the employer must tell you the following verbally, in writing, or electronically:

• the name, address, and phone number of the background reporting company
• that the background reporting company didn’t make the decision about not hiring or promoting you and can’t give specific reasons for it
• that you have the right to dispute information on your report that is inaccurate or incomplete with the background reporting company. You'll be able to do this by contacting the background reporting company and following the company’s instructions for disputing information.
• that you have the right to get an additional free report from the background reporting company. You must ask for it within 60 days of the employer’s decision.

When you get your background report, review it carefully. If you think there are mistakes, contact the background reporting company to explain the mistakes and ask that they fix them. Include any supporting documentation you have with your request. If the background reporting company informs you that it has revised your report, review the report to make sure the mistakes are gone. Ask the background reporting company to send a copy of the corrected report to the employer and tell the employer about the mistake.

Denial Due to Discrimination

Sometimes, an employer’s use of an individual’s background report information can lead to illegal discrimination. For example, employers shouldn’t use a background report policy or practice that

• excludes people with certain criminal records if it significantly disadvantages one group of people compared to another group, based on race, national origin, or other protected characteristics covered by state or federal laws that prohibit employment discrimination; and
• does not accurately predict who will be a responsible, reliable, or safe employee

This means an employer cannot have a policy or practice that has a disparate impact on a particular group, unless there’s a job-related reason and it’s consistent with business necessity.

If you think an employer discriminated against you during the background check process, you may contact the EEOC by

• visiting its website at eeoc.gov 
• calling 1-800-669-4000 or 1-800-669-6820 (TTY)

The EEOC enforces federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, sexual orientation, gender identity, and transgender status), national origin, age (if you’re 40 or older), disability, or genetic information, or in retaliation for a person’s involvement in prior activities protected by federal employment discrimination laws. The EEOC investigates, conciliates, and mediates charges of employment discrimination and, in some instances, files lawsuits in the public interest.

What To Do Before You Apply

• Check your credit report. That way, you'll be able to dispute any mistakes before an employer sees them. To get your free credit report, go to AnnualCreditReport.com, or call 1-877-322-8228.
• Know your rights as a job applicant or employee. The EEOC enforces federal laws designed to protect you against employment discrimination because of different protected categories. If you believe an employer has discriminated against you, contact the EEOC online at eeoc.gov, by calling 1-800-669-4000, or by locating an EEOC field office near you. Employers also can’t retaliate against you — whether you’re a job applicant or employee — for asserting your right to be free from employment discrimination, including harassment. Asserting these rights is called “protected activity,” and it includes opposing alleged discrimination, or participating in proceedings under federal laws enforced by the (EEOC).

Protect Your Privacy

• Don’t put your Social Security number or banking information on an application or resume. If a company asks you for this information before you even interview, it’s probably a job scam. Employers may ask for your Social Security number during the interview process to run a background check. Once you’re hired, they may ask for your banking information so you'll be able to get direct deposit for your paychecks.

• Be mindful of what you share on social media and other places online. If you don’t want potential or current employers to see something you say or do, think about not posting it, or limiting who you share it with.

Report to the FTC

If an employer got your background report without your permission, or rejected you without sending you the required notices, report it to the FTC at ReportFraud.ftc.gov. Also tell the FTC if you think a background check company included errors in your background check.

Keep in mind that the information in this article is not legal advice. For that, you’ll need to consult an attorney. For the most up to date EEO-related developments, visit eeoc.gov.