U.S. flag
        An official website of the United States government
          Here’s how you know
        Here’s how you know**Official websites use .gov**
              
                A **.gov** website belongs to an official government organization in the United States.
        **Secure .gov websites use HTTPS**
              
                A **lock** (
              A locked padlock
              ) or **https://** means you’ve safely connected to the .gov website. Share sensitive
                information only on official, secure websites.  Home
                    *U.S. Equal Employment Opportunity Commission*

      search
      Menu
      Any of these words (optional)
Search

    close
            About EEOC
          
                        
  
    **About EEOC**
                        Overview
                                  The Commission and The General Counsel
                                  Commission Votes
                                  Meetings of the Commission
                                  EEOC History
                                  **News and Information**
                        Newsroom
                                  What You Should Know
                                  Legislative Affairs
                                  Publications
                                  Outreach and Education
                                  FOIA
              **Laws and Enforcement**
                        Laws, Regulations, Guidance and MOUs
                                  Discrimination by Type
                                  Mediation
                                  Litigation
                                  Systemic Enforcement
                                  Commissioner Charges and Directed Investigations
              **Programs and Performance**
                        Budget and Performance
                                  Initiatives
                                  Interagency Programs
                                  State and Local Programs
                                  Task Forces
                                  Tribal Programs
              **Data and Analytics**
                        Overview
                                  Data Governance
                                  EEO Data Collections
                                  Data and Statistics
                                  Data Tools and Products
                                  No FEAR Act Data
                                  **Inside EEOC**
                        Careers
                                  Office for Civil Rights, Diversity and Inclusion
                                  Doing Business with EEOC
                                  Privacy
                                  Office of Inspector General
          
                                            
  
      
                  
                        Employees & Job Applicants
          
                        
  
    **Employees & Applicants**
                        Overview
                                  Coverage
                                  Timeliness
                                  Prohibited Practices
              **Filing a Charge of Discrimination**
                        Filing a Charge
                                  How to File
                                  After You File a Charge
                                  Confidentiality
                                  Mediation
                                  Remedies
                                  Existing Charges
                                  Filing a Lawsuit
              **Discrimination by Type**
                        Age
                                  Disability
                                  Equal Pay
                                  Genetic Information
                                  Harassment
                                  National Origin Discrimination
                                  Pregnancy Discrimination
                                  Race/Color Discrimination
                                  Religious Discrimination
                                  Retaliation
                                  Sex
                                  Sexual Harassment
                                  Sexual Orientation and Gender Identity
          
                                  
  
      
                  
                        Employers / Small Business
          
                        
  
    **Employers / Small Business**
                        Overview
                                  Coverage
                                  After a Charge is Filed
                                  Resolving a Charge
                                  Commissioner Charges and Directed Investigations
                                  Remedies
              **Small Business Resource Center**
                        Small Business Home
                                  Small Business Requirements
                                  Frequently Asked Questions
                                  Tips for Small Businesses
                                  Making an Employment Decision?
                                  EEOC Resources
                                  Small Business Assistance
                                  Small Business Fact Sheet
                                  Small Business Videos
                                  EEOC Glossary
                                  Contact Us
              **Discrimination by Type**
                        Age
                                  Disability
                                  Equal Pay
                                  Genetic Information
                                  Harassment
                                  National Origin
                                  Pregnancy
                                  Race/Color
                                  Religion
                                  Retaliation
                                  Sex
                                  Sexual Harassment
                                  Sexual Orientation and Gender Identity
                                  Prohibited Practices
              Recordkeeping
                                  EEO Data Collections
                                  "Know Your Rights" Poster
                                  Training
                                  Other Employment Issues
          
                                            
  
      
                  
                        Federal Sector
          
                        
  
    **Federal Agencies**
                        Overview
                                  Federal EEO Coordination
                                  Federal Agency EEO Directors
                                  Laws, Regulations, Guidance & MOUs
                                  Management Directives & Federal Sector Guidance
                                  Federal Training & Outreach
                                  Resources
              **Federal Employees & Job Applicants**
                        Overview
                                  Federal Complaint Process
                                  Federal Sector Alternative Dispute Resolution
                                  Discrimination by Type
                                  Other Federal Protections
                                  Prohibited Practices
                                  Resources
          
                        
  
      
                  
                        Contact Us
          
                        
  
    Contact EEOC
                                  Find Your Nearest Office
                                  Office Operating Status
                                  Frequently Asked Questions

        
                  Languages
    English
              Español (Spanish)
                    Resources in Other Languages
                    عربي (Arabic)
              简体中文 (Chinese, Simplified)
              繁體中文 - Chinese (Traditional)
              Kreyòl Ayisyen (Haitian Creole)
              한국어 (Korean)
              Русском (Russian)
              Tagalog (Tagalog)
              Tiếng Việt (Vietnamese)
              فارسی (Persian. Farsi)
              پښتو (Pashto)
          

  

  Breadcrumb
Home
  laws
  guidance
  Background Checks: What Employers Need to Know

                      
                        

          
          
                        Background Checks:  What Employers Need to Know
            

      Translate this Page
    EnglishEspañol (Spanish)
              Issuing Authority
          

  This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.
        

  OLC Control Number
                                              EEOC-NVTA-0000-38


        

  Concise Display Name
                                              Background Checks:  What Employers Need to Know


        

  Issue Date
                                              03-11-2014


        

  General Topics
                                              Applications, Qualification Standards, Race, Color, Sex, National Origin, Religion, Age, Disability, Genetic Information


                

  Summary
                                              This document, drafted in collaboration with the Federal Trade Commission, provides information on how background checks are used in employment and when such use may implicate laws enforced by the EEOC or FTC.


        

  Citation
                                              Title VII, EPA, ADEA, Rehabilitation Act, ADA, GINA, 29 CFR Part 1601, 29 CFR Part 1620, 29 CFR Part 1621, 29 CFR Part 1625, 29 CFR Part 1626, 29 CFR Part 1630, 29 CFR Part 1635


        

  Document Applicant
                                              Employers, HR Practitioners


        

  Previous Revision
                                              No


        Disclaimer
          

  The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.*A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission*

When making personnel decisions - including hiring, retention, promotion, and reassignment - employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person's work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it's not illegal for an employer to ask questions about an applicant's or employee's background, or to require a background check.

However, any time you use an applicant's or employee's background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It's also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.

**Before You Get Background Information**

EEOC

In all cases, make sure that you're treating everyone equally. It's illegal to check the background of applicants and employees when that decision is based on a person's race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Except in rare circumstances, don't try to get an applicant's or employee's genetic information, which includes family medical history. Even if you have that information, don't use it to make an employment decision. (For more information about this law, see the EEOC's publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don't ask any medical questions before a conditional job offer has been made. If the person has already started the job, don't ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.

FTC

**If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information**, there are additional procedures the FCRA requires beforehand:

Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can't be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn't confuse or detract from the notice.
	If you are asking a company to provide an "investigative report" - a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle - you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
	Get the applicant's or employee's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly and conspicuously.
	Certify to the company from which you are getting the report that you:
	notified the applicant and got their permission to get a background report;
		complied with all of the FCRA requirements; and
		won't discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.**Using Background Information**

EEOC

Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:

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). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
	Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
	Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.FTC

**When taking an adverse action** (for example, not hiring an applicant or firing an employee) **based on background information obtained through a company in the business of compiling background information,** the FCRA has additional requirements:

Before you take an adverse employment action, you must give the applicant or employee:
	a notice that includes a copy of the consumer report you relied on to make your decision; and
		a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act," which you should have received from the company that sold you the report.By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.
	After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
	that he or she was rejected because of information in the report;
		the name, address, and phone number of the company that sold the report;
		that the company selling the report didn't make the hiring decision, and can't give specific reasons for it; and
		that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.**Disposing of Background Information**

EEOC

Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.

FTC

Once you've satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports - and any information gathered from them - securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can't be read or reconstructed. For more information, see "Disposing of Consumer Report Information? Rule Tells How" at http://www.business.ftc.gov/documents/alt152-disposing-consumer-report-information-rule-tells-how.

**Further Information**

EEOC

To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on:

**Preemployment medical inquiries:** see *Preemployment Disability-Related Questions and Medical* *Examinations* at www.eeoc.gov/policy/docs/preemp.html.
	**Medical inquiries during employment:** see *Questions and Answers: Enforcement Guidance on* *Disability-Related Inquiries and Medical Examinations of* *Employees Under the Americans with Disabilities Act (ADA)* at www.eeoc.gov/policy/docs/qanda-inquiries.html.
	**Genetic inquiries, including inquiries about family medical history:** see *Background Information* *for EEOC Final Rule on Title II of the Genetic Information* *Nondiscrimination Act of 2008* at www.eeoc.gov/laws/regulations/gina-background.cfm.
	**EEOC recordkeeping requirements:** see *Summary* *of Selected Recordkeeping Obligations in 29 C.F.R.* *Part 1602* at www.eeoc.gov/employers/recordkeeping_obligations.cfm.
	**Using arrest and conviction records to make employment decisions:** see *Questions and Answers* *about EEOC's Enforcement Guidance on the Consideration* *of Arrest and Conviction Records in Employment Decisions* *Under Title VII* at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.
	**Whether arrest and conviction records act as an automatic bar to all employment:** see *Reentry* *Myth Buster: On Hiring/Criminal Records Guidance* at https://nationalreentryresourcecenter.org/sites/default/files/inline-files/reentryMythBuster_hiringCrimRecord.pdf.
	**Background on the EEOC for small businesses:** see Get the Facts Series: Small Business Information, www.eeoc.gov/eeoc/publications/smallbusiness.cfm.**FTC**

To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. For specific information on employment background reports, see:

**Using Consumer Reports: What Employers Need to Know** at www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know
	**The Fair Credit Reporting Act & social media: What businesses should know** at www.business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know
	**Background screening reports and the FCRA: Just saying you're not a consumer reporting agency isn't enough** at www.business.ftc.gov/blog/2013/01/background-screening-reports-and-fcra-just-saying-youre-not-consumer-reporting-agency-i
	**Reentry Myth Buster: Criminal Histories and Employment Background Checks** at https://www.opm.gov/policy-data-oversight/diversity-equity-inclusion-and-accessibility/reference-materials/federal-hiring-mythbu.The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law.



Image
                                              EEOC-FTC-background-checks-EMPLOYERS (final 12-13-13)_img_0Image
                                              EEOC-FTC-background-checks-EMPLOYERS (final 12-13-13)_img_1A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission

Click to insert new elementReturn to top

  EEOC Logo, Image
            U.S. Equal Employment Opportunity Commission

          EEOC Headquarters
              131 M Street, NE
Washington, DC 205071-800-669-6820 (TTY)1-844-234-5122 (ASL Video Phone)

        Questions?

Call 1-800-669-4000
For Deaf/Hard of Hearing callers:1-800-669-6820 (TTY)1-844-234-5122 (ASL Video Phone)info@eeoc.govFind your nearest EEOC officeFrequently Asked Questions
          Connect With Us

  FOIA
      
    
                      Privacy Policy
      
    
                      Disclaimer
      
    
                      Accessibility
      
    
                      Office of Inspector General
      
    
                      Promoting Access to Voting
      
    
                      USA.gov