July 2013 Bar Bulletin
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July 2013 Bar Bulletin

Trust, but Verify: Background Checks

By Karen Sutherland


The wide variety of information available today has made background checking easier. There are, however, legal limits on background checks. This article touches the surface of some of those limits; it is not a complete guide to this area of the law.

What Is a Background Check?

The information reviewed in a background check could include, by way of example: driving records, vehicle registration, credit records, criminal records, Social Security number, education records, court records, workers' compensation, bankruptcy, character references, neighbor interviews, medical records,1 property ownership, military records, state licensing records, drug test records, past employers, personal references, incarceration records, and sex offender lists.2

Social media could also be checked, but anyone doing so should be careful that the information relates to the correct person and that the source of the information is accurate.3

Background Checks Conducted by a Third Party

There are numerous companies that will perform a background check for a fee. Such background checks regarding certain information are regulated by the federal and state Fair Credit Reporting Act (FCRA).4 Under the FCRA, a background check conducted by a third party is a "consumer report" and can include information from a variety of sources, including credit reports and criminal records.

If the background check also includes interviews concerning a person's character, general reputation, personal characteristics and lifestyle, it is an "investigative report" under the FCRA. Before an employer obtains a consumer report, the employer must:5

  • Tell the applicant or employee that the employer might use information in the consumer report for decisions related to employment. This notice must be in writing in a stand-alone format. The notice cannot be in an employment application. The employer can include some minor additional information in the notice, such as a brief description of the nature of consumer reports, but only if it does not confuse or detract from the notice.

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