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
3. • A sum­ma­ry of rights under the FCRA
   This gives the appli­cant a chance to dis­pute any inac­cu­ra­cies before a final deci­sion is made.
4. 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.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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