Many job applicants want to know whether their prospective employer can run a background check on them (whether the background check is for criminal convictions or serious credit problems, such as bankruptcy). If running a background check on job applicants is illegal under federal background check law or your state’s background check laws (such as California background check law), the employer should not be running one. This guide will primarily address federal law for whether an employer can run the background check; the disclosures they have to make if they run one; limits on their ability to run one; and penalties if they illegally run a background check.
Can employers run background checks without permission?
Under federal law, employers must notify job applicants if they plan to run a background check on a job applicant. This notification must clearly state that the report is for employment purposes, and the notification must relate only to background checks. In other words, the notification must be a standalone document.
What if you fail your background check?
Under federal law, before an employer decides not to hire a job applicant based on a background check, it must provide what is called a “pre-adverse action letter” to the applicant that includes a copy of the background check report and a statement of rights.
The employer must provide a “reasonable” time to permit the job applicant to respond to this letter.
If the applicant does not respond, the employer can officially not hire the applicant. It must provide the applicant with a written notice that explains that the applicant is not being offered a job based on information found in a background check.
Can employer ask about criminal history on a job application (2022)?
Under federal background check law, an employer is permitted to ask a job applicant about their criminal history. But many state laws prohibit employers from asking. A good background check attorney will generally advise you that if it’s legal for your employer to ask, it’s better to be truthful up front about your criminal history. If the employer sees your your other positive traits, the conviction shouldn’t matter, and it’s often better to find an employer that is okay with it, rather than getting a job by failing to disclose criminal history, only to have the employer find out about it later and fire you.
You may not, however, need to disclose the following because employers are generally not allowed to consider them in making a hiring decision:
- Arrests not followed by convictions
- Referral to a diversion program
- Dismissed convictions
- Sealed convictions
- Expunged convictions
What are the penalties and damages if an employer violates background check laws?
For a federal background check law violation, you may be entitled to reimbursement for harm caused by the violation (or “actual damages”), such as lost wages. Even in the absence of actual harm, you may be entitled to up to $1,000 per violation (or “statutory damages”), and attorneys’ fees and costs. A good background check attorney may be able to convince the court to award you punitive damages to punish the employer or prospective employer for the background check violations.