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Background Checks in Hiring—What Employers Can (and Can’t) Do

Introduction

Run­ning back­ground checks on job appli­cants is a pret­ty stan­dard part of the hir­ing process these days. But just because some­thing is com­mon doesn’t mean it’s sim­ple. Between fed­er­al laws, state reg­u­la­tions, and pri­va­cy con­cerns, employ­ers have to walk a fine line. And for appli­cants, it’s impor­tant to under­stand your rights—especially if some­thing from your past might show up.

Let’s break down how back­ground checks work, what’s allowed under fed­er­al and West Vir­ginia law, and how both sides of the hir­ing table can han­dle the process with­out cross­ing legal lines.

What Is a Background Check?

In the employ­ment con­text, a back­ground check is any review of an applicant’s his­to­ry to help an employ­er decide whether to hire them. That can include:

  • Crim­i­nal history
  • Cred­it reports
  • Employ­ment and edu­ca­tion verification
  • Dri­ving records
  • Ref­er­ence checks

Most employ­ers don’t run all of these checks, but for cer­tain jobs—especially in health­care, finan­cial ser­vices, or posi­tions of trust—these reviews are con­sid­ered essential.

The Federal Framework: The FCRA

The big fed­er­al statute gov­ern­ing back­ground checks is the Fair Cred­it Report­ing Act (FCRA), 15 U.S.C. § 1681 et seq. Despite its name, the FCRA applies to much more than just cred­it scores. Any time an employ­er hires a third-par­ty com­pa­ny to gath­er back­ground info (called a “con­sumer report­ing agency”), the FCRA kicks in.

Here’s what the FCRA requires:

  1. Dis­clo­sure and Writ­ten Con­sent
    Before obtain­ing a back­ground check, an employ­er must pro­vide a “clear and con­spic­u­ous” dis­clo­sure in writ­ing and must get the applicant’s writ­ten autho­riza­tion. This dis­clo­sure must be a stand­alone document—not buried in the job application.
  2. Pre-Adverse Action Notice
    If the employ­er intends to take adverse action (like not hir­ing) based on the report, they must first give the applicant:
    • A copy of the report
    • A sum­ma­ry of rights under the FCRA
    This gives the appli­cant a chance to dis­pute any inac­cu­ra­cies before a final deci­sion is made.
  3. Post-Adverse Action Notice
    Once the employ­er makes a final deci­sion, they must send anoth­er notice with: 
    • The name and con­tact info of the report­ing agency
    • A state­ment that the agency didn’t make the hir­ing decision
    • A notice of the applicant’s right to dis­pute the report

What About Criminal Records?

Crim­i­nal back­ground checks are a spe­cial area of concern—and the sub­ject of a lot of leg­is­la­tion and litigation.

The Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) has issued guid­ance warn­ing that blan­ket poli­cies exclud­ing any­one with a crim­i­nal con­vic­tion can lead to dis­parate impact dis­crim­i­na­tion under Title VII, 42 U.S.C. § 2000e‑2(k). That’s because cer­tain minor­i­ty groups are sta­tis­ti­cal­ly more like­ly to have crim­i­nal records due to sys­temic dis­par­i­ties in the jus­tice system.

Instead, the EEOC rec­om­mends employ­ers consider:

  • The nature and grav­i­ty of the offense
  • How long ago it occurred
  • Whether it’s rel­e­vant to the job duties

EEOC Guid­ance: https://www.eeoc.gov/laws/guidance/arrest-conviction

The EEOC under the sec­ond Trump admin­is­tra­tive is sig­nif­i­cant­ly chang­ing the EEOC’s posi­tion on numer­ous issues. Project 2025, which is heav­i­ly influ­enc­ing those Trump Admin­is­tra­tive changes in employ­ment law, has argued against dis­parate impact dis­crim­i­na­tion claims. I would­n’t be sur­prised if the EEOC changes its posi­tion in these areas, but the EEOC’s inter­pre­ta­tive guid­ance is still on the EEOD web site, and still reflects the EEOC’s offi­cial position.

Ban-the-Box Laws

Many states and cities have adopt­ed “ban-the-box” laws that restrict when employ­ers can ask about crim­i­nal his­to­ry. These laws gen­er­al­ly pro­hib­it ask­ing about con­vic­tions on the ini­tial appli­ca­tion, delay­ing it until lat­er in the hir­ing process.

West Vir­ginia does not cur­rent­ly have a statewide ban-the-box law, but cer­tain local­i­ties and gov­ern­ment agen­cies may have poli­cies in place. For exam­ple, the City of Charleston has a ban-the-box pol­i­cy for munic­i­pal hiring.

That said, employ­ers in West Vir­ginia still need to com­ply with fed­er­al guid­ance and avoid using arrest records alone as a dis­qual­i­fi­er (arrests with­out con­vic­tions can be par­tic­u­lar­ly risky to consider).

Using Credit Reports

Some employ­ers check cred­it his­to­ry, espe­cial­ly for jobs involv­ing mon­ey, sen­si­tive finan­cial data, or fidu­cia­ry duties. But this is also controversial—and increas­ing­ly regulated.

Sev­er­al states pro­hib­it or lim­it the use of cred­it reports in hir­ing. West Vir­ginia doesn’t cur­rent­ly restrict it, but the FCRA still applies. Employ­ers must:

  • Noti­fy appli­cants they’re pulling a cred­it report
  • Obtain writ­ten consent
  • Pro­vide notices before and after adverse actions

Medical Information and Drug Tests

Employ­ers should tread care­ful­ly when it comes to med­ical infor­ma­tion. The Amer­i­cans with Dis­abil­i­ties Act (ADA), 42 U.S.C. § 12101 et seq., lim­its pre-employ­ment med­ical inquiries. Employers:

  • Can’t ask about dis­abil­i­ties or med­ical con­di­tions before mak­ing a con­di­tion­al job offer
  • Can require a med­ical exam only if it’s job-relat­ed and con­sis­tent with busi­ness necessity

The same goes for drug testing—generally allowed, but it can’t be used to screen out peo­ple based on legal pre­scrip­tions or recov­ery from addic­tion, which may be pro­tect­ed under the ADA.

Social Media Checks: Risky Business

Check­ing an applicant’s social media accounts might seem like due diligence—but it’s a legal mine­field. Employ­ers who snoop on Face­book, Insta­gram, or X (for­mer­ly Twit­ter) could unin­ten­tion­al­ly learn things they’re not sup­posed to con­sid­er dur­ing hir­ing, like:

  • Age
  • Reli­gion
  • Dis­abil­i­ty
  • Preg­nan­cy

If that infor­ma­tion plays any role in a decision—even subconsciously—it could fuel a dis­crim­i­na­tion claim.

Best Practices for Employers

  1. Get clear writ­ten con­sent for any back­ground check.
  2. Use con­sis­tent poli­cies—don’t check one applicant’s his­to­ry and not another’s.
  3. Fol­low the FCRA process to the let­ter, includ­ing pre- and post-adverse action notices.
  4. Train hir­ing man­agers to avoid improp­er ques­tions or assump­tions based on back­ground reports.
  5. Be cau­tious with social media—or bet­ter yet, don’t use it at all for hir­ing decisions.

Best Practices for Applicants

  1. Ask if a back­ground check will be run—and get a copy if it leads to rejection.
  2. Review your own cred­it and crim­i­nal his­to­ry—mis­takes happen.
  3. Know your rights—you can dis­pute inac­cu­rate reports under the FCRA.
  4. Be hon­est—if you have a past issue, be upfront and explain how you’ve moved forward.

Final Thoughts

Back­ground checks are a nor­mal part of mod­ern hiring—but they come with strings attached. For employ­ers, that means stick­ing to legal pro­ce­dures and focus­ing only on rel­e­vant infor­ma­tion. For appli­cants, it means know­ing your rights and being ready to respond if some­thing in your his­to­ry rais­es red flags.

Done right, a back­ground check is just anoth­er step in the process. Done wrong, can be a law­suit wait­ing to happen.

Drew M. Capuder
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