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Can an Employer Run a Background Check Without Consent?

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Finding a job after release is probably the greatest challenge a felon has to deal with. Even after securing a job, employers can still run a background check. This blog post will cover whether or not an employer can run a background check without consent.

  • What Is Included in a Background Check?
  • Company Background Check on Current Employees
  • Consent Required?
  • Can You Run a Background Check on Yourself?
  • Recommended Action


What Is Included in a Background Check?

Before being hired, employers review a job applicant’s background because they don’t want someone who doesn’t succeed after starting a job. This is considered to be ,a “bad hire,” which is someone who:

  • Doesn’t produce quality work
  • Has a negative attitude
  • Doesn’t work well with other employees
  • Doesn’t deal well with customers
  • Doesn’t have the skills they stated on an application
  • Has attendance problems
  • Is dishonest on the job

The last question is the biggest challenge for felons. Their criminal history can be a problem when applying for a job even if they are now committed to living an honest lifestyle.

An employer may view at least some of the following:

  • Credit reports
  • Driving records
  • Educational records
  • Criminal offenses

Background information helps an employer to determine a candidate’s:

  • Past mistakes
  • Character
  • Financial fitness

This allows an employer to identify hiring risks for security and safety issues for the company.

Certain information is not available to employers conducting a background check, including:

  • Bankruptcies after 10 years
  • Civil suits, civil judgments, and record arrests after seven years
  • Paid tax liens after seven years
  • Accounts placed for collection after seven years
  • Any other negative information except criminal convictions after seven years

While a hiring manager asks questions regarding a person’s background, an employer is not allowed to ask for medical information until a job offer has been made.

The criminal record review conducted of a background check includes examining criminal history files for any criminal offenses, which will reveal all convictions and non-convictions, including cases not prosecuted or ones dismissed. Convictions can be reported with no time limit while a non-conviction will show up for seven years. A crime will not show up on a background check if a felon has his or her record expunged.

Company Background Check on Current Employees

A background check is common when considering hiring for a position with the company. As many as 96% of employers run a background check on job applicants; however, there is no legal requirement for companies to run background checks on current employees.

While some companies have an “honor clause” that requires employees to report criminal charges whenever they occur, it might be important to repeat a background check periodically.

There are several reasons to conduct a background check on current employees, including:

  • Reassignment – A new position may have different responsibilities not covered under a previous background check.
  • Retention – Some companies conduct a background check when deciding which employees to retain at a company.
  • Promotion – A promotion typically involves increased responsibilities and a new job description. Conducting a background check can help ensure promoting the right candidate.
  • Workplace accidents – Some companies conduct a background check on current employees after an accident to address issues with insurance companies and the legal department.

Consent Required?

Felons who are currently working for a company may be concerned that their employer might decide to run a background check on them for any reason. In most states it is required for an employee to give consent to a background check before an employer can run one.

Background checks allow even current employers to look for a criminal record. This may include information regarding arrests, court records, convictions, and other public information.

Signed Authorization

In most states, employers are not permitted to run a background check without a signed authorization form, according to the Federal Credit Reporting Act (FCRA). To do so would be in violation of federal law.

If there is no indication of an employee having done something wrong on the job, an employer must have the employee’s consent before screening them. Some companies have a clause in their original consent form to allow them to do a background check after hiring.

Adverse Action

An employer must notify an applicant that a background check may be used to help make a decision regarding employment. This notice typically must be provided in writing on a separate document from other employment materials. The authorization form must be signed by an applicant. Any adverse action that results requires the company to provide the applicant a notice of the report in making any decision.

When someone consents to a background check, an employer must inform an applicant or employee that the report may affect whether he or she will be hired, promoted, or keep a job. The employer must also disclose any intention to run periodic background checks. This notice must be in writing and separate from a job application.

Social Media

An employer does not need permission to gather information about an employee from free and public sources, such as social media sites. Information from social media must be used with caution as there is a risk of making a decision based on potentially false information.

Third-Party Provider

An employer must obtain written consent to seek information from third-party providers, such as credit reporting agencies. An employee has the right to refuse consent to a background check, but if so, there is a risk in losing a promotion or perhaps in keeping a job.

Can You Run a Background Check on Yourself?

Doing a background check on yourself will allow you, as a felon, to know exactly what will be discovered when an employer does a review. A felon with any questions can contact an attorney. It is essential to take action and not risk a chance on the results.

There are different kinds of personal background checks that a felon can run:

  • From the court in which he or she was charged
  • A credit report will help determine how financially responsible an individual is
  • Driving records for any job involving driving, such as a truck driver
  • An educational report through the National Student Clearing House

For someone wanting to do a background check on themselves, there are places that can help. A felon would have the best chance at getting a job or keeping a position by having his or her record expunged.

Recommended Action

When looking for or keeping a job, don’t hide the fact that you have a felony conviction if it comes up. Instead, explain the facts about that conviction without emotion.

It is never a good idea to lie about your past. This could result in not being considered for a job if an employer finds out about it. Take responsibility for past actions and explain how you are putting your life in order. Doing your own background check allows a felon to know what a potential or current employer will see on your record.

Remember that you are not defined by your crime. Be willing to see yourself  in a different light, and be ready to establish an honest life. The best opportunity for success in a new life begins with having support from family and friends. After all, felons do make good employees.

So what do you think about this blog post about whether or not an employer can run background checks without consent? Have you or someone you know had an employer run a background check without consent? What was that like and what happened? Please tell us in the comments below.

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