Background Check
Laws & Regulations
For Private Employers
- FCRA/FACTA - Fair Credit Reporting Act
- Additional Federal Background Check Related Laws, Regulations & Links
- State and Local Background Check Laws and Regulations
- State and Local E-Verify Employer Requirements
- Use of Sealed and Expunged Criminal Records
- City and County "Ban the Box" Employer Requirements
FCRA/FACTA - Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA/FACTA) is the primary law governing background checks in the United States.FCRA/FACTA - Fair Credit Reporting Act Information and Notices
http://www.ftc.gov/os/statutes/fcrajump.shtm
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
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://www.ftc.gov/bcp/edu/pubs/business/alerts/alt152.shtm
DOL: 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
EEOC Policy Statement: Conviction Records under Title VII
http://www.eeoc.gov/policy/docs/convict1.html
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: Using Consumer Reports (What Employers Need to Know)
http://www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm
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://www.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
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:
- LawLogix: E-Verify State Map (includes city and county requirements)
- NCSL: E-Verify FAQ (includes table of states requiring E-Verify)
- Klasko: E-Verify State-by-State Legislation Survey
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
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
City and County "Ban the Box" Employer Requirements
Many counties and cities now have policies and regulations relating to employer inquiries into an applicant's criminal history, sometimes called "Ban the Box" policies. The September 2011 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:
Connecticut, Hartford
Massachusetts, Boston
Massachusetts, Cambridge
Massachusetts, Worcester
Pennsylvania, Philadelphia
Other State and Local Laws and Regulations
Examples of other laws related to typical employment background checks conducted by private employers include:
Arizona ARS §§23-211 to 23-210: Employment of unauthorized aliens
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 Labor Code §1024.5: Credit report use notice and right to copy
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 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 8-2-118: Charging applicant cost of medical exam or furnishing records
Connecticut CGSA §31-51i: Inquiries into and use of applicant’s criminal history
Connecticut CT. Public Act 11-223: Credit report use
District of Columbia DC Code §2-1402.66:Payment for criminal report
Florida FSA 112.011(1)(a) and (b): Use of applicant’s criminal history
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: Use of credit reports
Illinois 20 ILCS 2635/7 (A.1&2): Request, release & right to copy of information from Illinois Department of State Police
Illinois 820 ILCS 50/10: Inquiries into applicant’s workers comp or workers occupational diseases claims/benefits
Illinois 820 ILCS 70/10: Credit history/report use
Iowa ICA §692.2 (1)(b)(3) and (4): Use of applicant’s arrest record
Kansas K.S.A. §22-4710: Use of applicant’s criminal history
Kentucky KRS Chapter 367.310: Use of applicant’s arrest record
Maine 10 MRSA §1314: Adverse action notice
Maryland MD Code, Labor and Employment §3-711: Credit report use
Massachusetts MGLA 6 §172(30) (effective May 2012): 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
Michigan MCLA §37.2205a(1): Inquires into and use of applicant’s arrests and charges
Minnesota MSA §13C: Use of consumer reports
Minnesota MSA §181.645: Payment for background checks
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 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
Ohio OHST 2953.33(B): Inquiries into and use of applicant’s criminal history
Oklahoma O.S. §24-148(A): Disclosure of consumer report use and right to copy of report
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
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
Texas Tx Civ Prac & Rem Code §145.002: In-home worker background check requirements
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
Vermont 9 V.S.A. §2480e: Credit report use
Vermont 20 V.S.A. §2056c(c)(10): Payment for criminal report
Vermont 33 V.S.A. 6914(b): Inquiries into applicant’s criminal history
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
Wisconsin WIST §111.335: Use of applicant’s arrest record
Wisconsin, Madison Municipal Code §39.03(8): SSN inquires, use of credit reports and use of applicant’s criminal history
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 additional laws that may not be included are:
- 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 specific 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
State and Local Law Resources:
- For a particular state the state's Attorney General's office or a local attorney can help determine the state laws and regulations that govern employer background checks.
- U.S. Chamber of Commerce: Restrictions on Criminal Record Checks (membership required)
- Cornell University Law School: Employment Law
- CRAHelpDesk.com: The State Rules Register (membership required)
- Seyfarth Shaw 50 State End User Compliance Guide (membership required)
State & Local Web sites
- CRAHelpDesk.com: Search and View State Statutes
- FindLaw State Resources
- State and Local Government on the Net
Related Resources
- How To Do Background Checks
- Background Check Start-Up Kit
- California Background Check Law and FCRA Employer Requirements
- Employment Background Check Sample Policy
- Consultants Who Advocate and Help With Employment Background Checks
- Employment Background Checks: A Guide for Small-Business Owners
- Employment Background Check Guidelines and Sample Policies from Industry Sources
- National Association of Professional Background Screeners (NAPBS)
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 services.
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.