“Can I run a background check on a guy before he works in customers’ homes?” Yes. The joint guide from the Equal Employment Opportunity Commission and the Federal Trade Commission says that, apart from limits on medical and genetic information, “it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.”
The rules are about how and when. Three sets of them meet here: the Fair Credit Reporting Act (FCRA), which governs reports you buy from a screening company; federal and state anti-discrimination law, which governs how you use what you learn; and the state and city “ban the box” laws, which govern when you may ask. Here they are in the order a hire actually runs.
Before you start: one written policy, applied to everyone
Decide which jobs get which checks, and write it down. The EEOC and FTC guide says to “apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).” It also warns that “asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.”
A one-paragraph policy is enough: every technician who works inside customers’ homes gets a criminal background check after a conditional offer; every employee who drives a company truck also gets a driving record check. The driving side has its own rules, covered in Employees Driving Company Trucks: Records, Insurance and Rules.
Size matters for which laws reach you. The EEOC says Title VII, the ADA and GINA cover private employers “that employ 15 or more individuals,” and the ADEA covers private employers “with 20 or more employees.” Below those numbers, do not assume you are free: the same EEOC page says “many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws,” and state laws can reach smaller shops.
When you may ask: ban-the-box laws
California is a clear example. Its Fair Chance Act, Government Code section 12952, covers “public and private employers with five or more employees.” The state’s Civil Rights Department says the law generally prohibits “including on a job application any questions about conviction history before a conditional job offer has been made,” and asking about or considering criminal history before that offer. After the offer, an employer may run the check, but taking the offer back requires:
California is not alone. The National Employment Law Project’s guide, last updated in October 2021, counted fifteen states that had extended these rules to private employers: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington, and it noted city and county laws as well. The guide is several years old, so check your own state’s civil rights or labor agency, and your city, before you write the application.
The FCRA steps, when a screening company runs the check
The FTC says employment background checks “also are known as consumer reports,” and “can include information from a variety of sources, including credit reports and criminal records.” When the report comes from a company in the business of compiling background information, the FCRA adds these steps. They are the federal floor: the EEOC and FTC guide notes that “some states and municipalities regulate the use of that information for employment purposes,” so your state may add steps of its own.
1. A stand-alone written disclosure
The statute, 15 U.S.C. §1681b(b)(2)(A), requires “a clear and conspicuous disclosure” made in writing before the report is ordered, “in a document that consists solely of the disclosure.” The FTC’s business blog spells out what that means in practice: do not add language “that claims to release you from liability,” and “if you have additional waivers, authorizations, or disclosures you want to give to prospective employees, do it in a separate document.” Do not tuck it into the application.
2. Written permission
The applicant must “authorize in writing” the report, and the statute allows that signature on the disclosure page itself. The FTC blog agrees: “It’s OK to put the required disclosure and your request for their authorization in one document.”
3. Your certification to the screening company
Before the company releases the report, you certify that you made the disclosure and got the permission, that you will follow the adverse action steps if they apply, and that the information “will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation.” Read what you sign when you open the account or place the order: that signature is this certification.
4. Weigh the report fairly
The EEOC’s 2012 guidance on arrest and conviction records draws a hard line between the two: “The fact of an arrest does not establish that criminal conduct has occurred,” and an exclusion based on an arrest alone “is not job related and consistent with business necessity.” For convictions, it points to three factors: “the nature and gravity of the offense or conduct,” “the time that has passed since the offense, conduct and/or completion of the sentence,” and “the nature of the job held or sought.” Its list of best practices includes eliminating “policies or practices that exclude people from employment based on any criminal record.” A blanket “no records, ever” rule is the kind of policy it means.
The EEOC and FTC guide adds one more: “Be prepared to make exceptions for problems revealed during a background check that were caused by a disability.”
5. Before you say no: the pre-adverse action notice
If anything in the report might lead you to turn the person down, you must first give them, under §1681b(b)(3), “a copy of the report” and the written description of their rights. The FTC calls that document “A Summary of Your Rights Under the Fair Credit Reporting Act,” and the statute requires the screening company to give it to you with the report, if it has not already. The federal text names no number of days to wait. Wait long enough for the person to point out a wrong name, an old case or a sealed record, and read what they send; where a state sets a period, as California does, follow it.
6. After you say no: the adverse action notice
Under §1681m(a), the notice may be “oral, written, or electronic,” and it must give the screening company’s name, address and telephone number, “a statement that the consumer reporting agency did not make the decision,” the person’s right to a free copy of their report from that company if they ask within 60 days, and their right to dispute what the report says. If a credit score was used in the decision, the notice must disclose that score too. Send it in writing or by email so you have a record that it went.
7. Keep the file, then destroy it properly
The EEOC and FTC guide says personnel and employment records, “including all application forms, regardless of whether the applicant was hired,” must be kept “for one year after the records were made, or after a personnel action was taken, whichever comes later.” After that, dispose of reports securely: “burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed.”
What skipping a step can cost
The FCRA lets the applicant sue. Under 15 U.S.C. §1681n, a person who willfully fails to comply is liable for actual damages or “damages of not less than $100 and not more than $1,000,” plus “such amount of punitive damages as the court may allow,” plus costs and “reasonable attorney’s fees.” The disclosure form is the cheapest part of the whole process to get right.
Searching court records yourself
The FCRA steps above are tied to reports from a screening company. If you look up public court records yourself, the anti-discrimination rules still apply: the EEOC and FTC guide says that whenever you use background information to make a decision, “regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination.” A state ban-the-box law can also limit when you may look, wherever the information comes from.
How it fits together: an example
Say a pest control company in California with six employees is hiring a technician. With six people it is under the EEOC’s 15-employee line for Title VII, but over California’s five-employee line, so the Fair Chance Act applies. The application has no conviction question. After the interview, the owner makes a conditional offer, hands over the stand-alone disclosure and authorization, and orders the report. The report shows a conviction from many years ago, unrelated to the work. The owner weighs the three factors, finds no reason to pull the offer, and the technician starts Monday. Had the owner wanted to pull the offer, the preliminary notice, the copy of the report, the summary of rights and the five business days would have come first.
Once the answer is yes, the rest of the hiring paperwork starts; Hiring Your First Employee: The Paperwork, Step by Step has it in order.
General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.