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Background Check
Laws & Regulations

For Private Employers


Background Check Related Laws & Regulations
Ever-changing federal, state and local laws and regulations impact both how private employers obtain background checks and how they use the information received. Some of the more common areas to be reviewed when establishing background screening policies and procedures include:


FCRA/FACTA - Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA/FACTA) is the primary federal law governing background checks in the United States.

The Employment Background Check Blog
FTC: Data Brokers ARE Consumer Reporting Agencies Under The FCRA

Consumer Financial Protection Bureau (CFPB)
CFPB: PART 1022—FAIR CREDIT REPORTING (REGULATION V) Correction (for corrected sample forms)

FTC: FCRA/FACTA - Fair Credit Reporting Act Information
http://www.ftc.gov/os/statutes/fcrajump.shtm

FTC: Using Consumer Reports (What Employers Need to Know)
http://business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know

FTC: 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations (July, 2011)
http://ftc.gov/os/2011/07/110720fcrareport.pdf

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EEOC Guidance On Use Of Criminal Records
The U.S. EEOC (Equal Employment Opportunity Commission) is responsible for enforcing Title VII of the Civil Rights Act of 1964. An employer is covered under Title VII if it has at least 15 employees.

EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII
http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

Office Of Legal Counsel Testimony On Arrests And Convictions
http://www.eeoc.gov/eeoc/meetings/4-25-12/olc_testimony.cfm

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Additional Federal Background Check Related Laws, Regulations & Links

Americans with Disabilities Act: Questions and Answers
re: medical examinations and inquiries about disability
http://www.ada.gov/employmt.htm

Disposing of Consumer Report Information? New Rule Tells How
http://business.ftc.gov/documents/alt152-disposing-consumer-report-information-new-rule-tells-how

DOL: Drug-Free Workplace
Drug-Free Workplace Advisor
http://www.dol.gov/elaws/drugfree.htm
Workplace Safety & Health - Drug-Free Workplaces
http://www.dol.gov/dol/topic/safety-health/drugfreeworkplace.htm

Driver's Privacy Protection Act (DPPA)
http://uscode.house.gov/download/pls/18C123.txt

E-Verify, USCIS
http://www.uscis.gov/e-verify

Form I-9, Employment Eligibility Verification (Official Document)
http://www.uscis.gov/files/form/i-9.pdf

FTC: Recommendations on Social Security Number Use in the Private Sector
re: transmitting an SSN over the Internet
http://ftc.gov/os/2008/12/P075414ssnreport.pdf

Patriot Act
http://epic.org/privacy/terrorism/hr3162.html

Social Security Number Verification Service (SSNVS)
http://www.ssa.gov/employer/ssnv.htm

Social Security Office Locator Tool
http://www.socialsecurity.gov/locator

Note: The above does not reference all federal laws and regulations related to background checks. For example, no attempt has been made to identify laws and regulations specific to regulated industries or persons.
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State and Local Background Check Laws and Regulations
All states and many local jurisdictions have laws and regulations that govern employment background checks.

State and Local E-Verify Employer Requirements
Many states, counties and cities have laws and regulations relating to employer use of E-Verify.
Resources:
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Use of Sealed and Expunged Criminal Records
States often restrict inquiries into and use of an applicant's sealed and expunged criminal records by private employers. For example:
Colorado CRS 24-72-308(1)(f): Inquiries into applicant’s sealed criminal records
Georgia O.C.G.A. §15-11-79.2 and O.C.G.A. §42-8-63: Inquiries into and use of sealed or expunged criminal records
Illinois 20 ILCS 2630/12 and 775 ILCS 5/2-103: Inquiries into and use of sealed, expunged or erased criminal records
Indiana IC 35-38-8-7(b): Inquires into sealed and restricted criminal records
Maryland MD Criminal Procedure Code §10-109: Inquires into and use of expunged records
Oklahoma O.S. §22-19(F): Inquiries into applicant’s sealed criminal history
Virginia VA ST §19.2-392.4: Inquiries into applicant’s expunged criminal history

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State "Ban the Box" Laws
States may have laws limiting employer inquiries into an applicant's criminal history, sometimes referred to as "Ban the Box." The October 2012 NELP: States Adopt Fair Hiring Standards: Reducing Barriers to Employment of People with Criminal Records paper lists several states that have "Ban the Box" regulations that apply to private employers, including:
Hawaii
Massachusetts
New York
Pennsylvania
Wisconsin

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City and County "Ban the Box" Employer Requirements
Many counties and cities have policies and regulations relating to employer inquiries into an applicant's criminal history, sometimes called "Ban the Box" policies. The April 2013 NELP: Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records report lists several localities that have "Ban the Box" regulations that apply to private employers, including:
California, Compton
Connecticut, Hartford
Connecticut, New Haven
Massachusetts, Boston
Massachusetts, Cambridge
Massachusetts, Worcester
Michigan, Detroit
New Jersey, Atlantic City
New Jersey, Newark
New York, New York
Pennsylvania, Philadelphia
Pennsylvania, Pittsburgh

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Other State and Local Laws and Regulations
Examples of other laws and regulations related to typical employment background checks conducted by private employers include:
Alaska AKS §09.65.160: Employer reference immunity
Arizona ARS §23-1361: Employer reference immunity
Arizona ARS §§23-211 to 23-210: Employment of unauthorized aliens
Arkansas ARS §11-3-124: Requesting social media account information
Arkansas ARS §11-3-204: Employer reference immunity
California CA Civil Code §47(c): Employer reference immunity
California CA Civil Code §1785 and §1786: Consumer reports and investigative consumer reports
California CA Civil Code §1785.20.5: Credit report use
California CA Civil Code §1798.85(a)(3): SSN transmission over the Internet
California CA Labor Code §432 and CA Code Regs. 2 §7287.4(d)(1): Inquiries into and use of applicant’s criminal history
California CA Labor Code §980: Requesting social media account information
California CA Labor Code §1024.5: Credit report use notice and right to copy
California CA Penal Code §290.4(d)(1): Use of sex offender list
California CA Penal Code §11105: Request and use of fingerprints
Colorado CRS 6-1-715(c): SSN transmission over the Internet
Colorado CRS 8-2-114: Employer reference immunity
Colorado CRS 8-2-118: Charging applicant cost of medical exam or furnishing records
Colorado CRS 8-2-126 (effective 7/1/2013): Credit report use
Connecticut CGSA §31-51i: Inquiries into and use of applicant’s criminal history
Connecticut CT. Public Act 11-223: Credit report use
Delaware DE Code 19 §709: Employer reference immunity
District of Columbia DC Code §2-1402.66: Payment for criminal report
Florida FLS 768.095: Employer reference immunity
Georgia Georgia Code §34-1-4: Employer reference immunity
Georgia O.C.G.A. §35-3-34.1 and O.C.G.A. §42-8-60: Use of first offender's criminal history
Georgia O.C.G.A. §35-3-34.3.b: Adverse action notice when using Georgia Crime Information Center information
Hawaii HRS §378-2.5: Inquiries into and use of applicant’s criminal history
Hawaii HRS §378-2.7: Credit report use
Hawaii HRS §663-1-95: Employer reference immunity
Idaho ID Code §44-201(2): Employer reference immunity
Illinois 20 ILCS 2635/7 (A.1&2): Request, release & right to copy of information from Illinois Department of State Police
Illinois 745 ILCS 46/10: Employer reference immunity
Illinois 820 ILCS 50/10: Inquiries into applicant’s workers comp or workers occupational diseases claims/benefits
Illinois 820 ILCS 55/10(b): Requesting social media account information
Illinois 820 ILCS 70/10: Credit history/report use
Indiana IC 22-5-3-1: Employer reference immunity
Iowa IA Code §91B.2: Employer reference immunity
Kansas K.S.A. §22-4710: Use of applicant’s criminal history
Kansas K.S.A. 44-119a: Employer reference immunity
Kentucky KRS Chapter 367.310: Use of applicant’s arrest record
Kentucky KRS Chapter 411.225: Employer reference immunity
Louisiana LA RS 23:291: Employer reference immunity
Maine 10 MRSA §1314: Adverse action notice
Maine 26 MRSA §598: Employer reference immunity
Maryland MD Code, Courts & Judicial Proceedings §5-423: Employer reference immunity
Maryland MD Code, Labor & Employment §3-711: Credit report use
Maryland MD Code, Labor & Employment §3-712: Requesting social media account information
Massachusetts MGLA 6 §172(30): Providing copies of criminal history reports to applicants
Massachusetts MGLA 93 §§50 to 68: Obtaining and use of consumer credit reports
Massachusetts MGLA 151B §4(9) and MGLA 151B §4(9½): Inquiries into applicant’s criminal history
Massachusetts DCJIS CORI (Criminal Offender Record Information) Regulations: See Final DCJIS CORI Regulations
Michigan MCL §37.2205a(1): Inquires into and use of applicant’s arrests and charges
Michigan MCL §423.452: Employer reference immunity
Michigan Enrolled House Bill 5523 (Internet Privacy Protection Act): Requesting social media account information
Minnesota MSA §13C: Use of consumer reports
Minnesota MSA §181.645: Payment for background checks
Minnesota MSA §181.967: Employer reference immunity
Minnesota MSA §364.021 (effective 1/1/2014): Inquiries into and use of applicant’s criminal history
Missouri RSMO §290.152: Employer reference immunity
Montana MCA §39-2-802: Employer reference immunity
Nevada NRS 41.755: Employer reference immunity
Nevada NRS 179B.270: Use of sex offender registry
New Hampshire NHST §651:5: Inquiries into applicant’s criminal history
New Jersey NJSA 56:8-164: SSN transmission over the Internet and SSN to access a web site
New Jersey NJSA 56:11-33: Consumer report notice and right to copy
New Jersey NJAC 13:59-1.6: Notice and opportunity to correct of complete criminal history record
New Mexico NMSA 50-12-1: Employer reference immunity
New Mexico SB 371: Requesting social media account information
New York NY Correction, Article 23-A: Notice/posting requirements, inquiries into and use of applicant’s criminal history
New York NY Executive §296 (15 & 16): Inquiries into and use of applicant’s criminal history
New York NY General Business §380-b: Consumer report notice
New York NY General Business §399-dd*4 2(c): SSN transmission over the Internet
New York NY General Business §399-ddd: Disclosure of SSNs
North Carolina NC GS 1-539.12: Employer reference immunity
North Dakota NDCC 34-02-18: Employer reference immunity
Ohio ORC 2953.33(B): Inquiries into and use of applicant’s criminal history
Ohio ORC 4113.71: Employer reference immunity
Oklahoma O.S. §24-148(A): Disclosure of consumer report use and right to copy of report
Oklahoma O.S. §40-61: Employer reference immunity
Oregon ORS §30.178: Employer reference immunity
Oregon ORS §181.555(2)(b): Notice of inquiry into applicant’s criminal history
Oregon ADM Code 839-005-0080: Credit report use
Pennsylvania PCS 18 §9125: Use of applicant’s criminal history
Pennsylvania PCS 42 §8340.1: Employer reference immunity
Rhode Island RI ST §6-13.1-21: Credit report use and notices
Rhode Island RI ST §28-5-7(7): Inquiries into applicant’s arrest record
Rhode Island RI ST §28-6.4-1(c): Employer reference immunity
South Carolina S.C. Code Ann. §41-1-65: Employer reference immunity
South Dakota S.D. Codified Laws Ann. §60-4-12: Employer reference immunity
Texas TX Civ Prac & Rem Code §145.002: In-home worker background check requirements
Texas TX Labor Code §103: Employer reference immunity
Utah UAC §34-46: Collection, use & retention of applicant's personal information
Utah UAC §R606-2(u): Inquiries into and use of applicant’s criminal history
Utah UT Code §34-42-1: Employer reference immunity
Utah UT Code §34-48: Requesting social media account information
Vermont 9 V.S.A. §2480e: Credit report use
Vermont 20 V.S.A. §2056c(c)(10): Payment for criminal report
Vermont 21 V.S.A. §495i: Credit report use
Vermont 33 V.S.A. 6914(b): Inquiries into applicant’s criminal history
Virginia VA Code §8.01-46.1: Employer reference immunity
Washington RCW §4.24.730: Employer reference immunity
Washington RCW §19.182.020: Credit report use
Washington RCW §19.182.020(d) and §19.182.110: Consumer report adverse action notice
Washington RCW §43.43.815(1): Use of applicant’s criminal history
Washington WAC §162-12-140: Pre-employment inquiries
West Virginia W.Va. Code §55-7-18a: Employer reference immunity
Wisconsin Wis. Stat §111.335: Use of applicant’s arrest record
Wisconsin Wis. Stat §895.487: Employer reference immunity
Wisconsin, Madison Municipal Code §39.03(8): SSN inquires, use of credit reports and use of applicant’s criminal history
Wyoming WY Stat §27-1-113: Employer reference immunity

The text of most of the above laws can be found on city/state web sites (State & Local Web sites).

Note: The above is not a complete list of all state and local laws and regulations related to employment background checks or employment eligibility verification. Examples of laws and regulations that may not be listed include:
  • Laws which duplicate provisions of the FCRA and other federal laws and regulations
  • Laws related to state background checks required for state regulated businesses, services, professions, and persons
  • Laws specific to public employers
  • Laws related to drug screening, medical/health examinations, HIV/AIDS testing, genetic testing, and lie detector tests
  • Regulations created by state and local agencies such as civil rights and equal opportunity commissions

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State and Local Law Resources:
State & Local Web sites
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Related Resources

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Disclaimer
The above is not a complete list of all federal, state, and local laws and regulations related to employment background checks or employment eligibility verification. The information on this site is for educational purposes only and cannot be relied upon as legal advice. It has been prepared with the understanding that the authors are not engaged in rendering legal advice. The information should not be used as a substitute for professional legal advice. Employers should consult with legal counsel experienced in local employment law matters to verify that their actions are in compliance with federal, state, and local laws and regulations.

A Matter of Fact has no control over the content of sites mentioned above and is not responsible for their content.
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