Employment Background Checks Without Employee's Permission

It is not uncommon for employers to request a background check on a person before extending an offer of employment. During the process, however, complications can arise.

Background Checks

Background checks require potential employers to pay a small fee in order to find if there are any criminal records related to job applicants. The checks are normally performed by third parties or third party software. They may include any findings related to arrests, court records, convictions and any other public information. States may have different laws related to how far back a background check may go. Databases may only go back so far, so the results may not find every possible offense.

Applicant Permission

It is typically required in most states for the applicant to give consent to a background check before an employer can run one. The employer is typically banned from running this check without such permission. The applicant typically signs a background check authorization form.

Consequences for Refusal

Applicants should be aware that refusing to consent to a criminal record check can often result in being denied the job. At least by agreeing to the check and disclosing any offenses the applicant may have a chance to explain any prior bad acts. An employer may simply assume the worst if a person refuses to consent to a background check. However, there may be complications that the employer may face if the employee refuses to allow a background check.


If an applicant refuses to provide this consent, complications can arise. The employer is not permitted to run the check without a signed authorization form in many states. This leaves the employer in the difficult position of determining how to treat the situation. He or she may decide that it is too risky to hire the applicant because he or she must be hiding something by not agreeing to the release. Alternatively, he or she may decide to just go ahead and hire the applicant. Both options pose certain risks. Not having background information can mean that someone is hired who may serve as a liability to the company. Not hiring someone may expose an employer to potential liability, also.

The Equal Employment Opportunity Commission has long held that employers cannot refuse to hire someone simply because he or she had a criminal record. Employers who refuse to hire anyone who has a criminal record can and have been found to violate federal law due to disparate impact. This concept means that if an employer has an employment policy that disproportionately affects a protected class of individuals that it may be held liable for the violation of law even if such impact was never intended.

Personnel Decisions

In particular, when employers use background information to make a personnel decision including hiring an applicant, they must be careful to follow all applicable federal and state laws. This includes adhering to standards promulgated by the Fair Credit Reporting Act. This Act requires the employer to notify the applicant that the background check may be used to help make a decision about employment. This notice must usually be provided in writing on a separate document than the other application materials. The background authorization form must be signed by the applicant. Before an employer takes adverse action, he or she must provide the applicant with a notice that includes a copy of the report that was relied upon to make the decision, a copy of a summary of the consumer’s rights, the knowledge that the applicant was rejected due to information on the report and the applicant’s right to review the information and report any discrepancies within 60 days of receiving notice.

Additionally, employers must follow anti-discrimination laws. An employer cannot require only applicants of a certain race to take background checks but not require other individuals to do the same. Additionally, there should not be an employment in policy that excludes applicants with certain criminal records if this policy would have a disparate impact on individuals of certain protected classes. This is the case so long as the policy is not job related and consistent with business necessity.

Legal Assistance

Individuals who believe that they have been discriminated against due to a criminal record or would like more information about their rights and duties under ban the box laws may wish to contact an employment lawyer for more information. Additionally, a lawyer may be able to explain how refusing to sign an authorization of this nature may affect a person.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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