Even if they are not required to do so, many employers use background check information on applicants and current employees to improve the chances they will hire, retain, and promote the best candidates. Employers must use background check information appropriately to avoid being exposed to substantial legal and financial risks.

Employers using criminal history information should be familiar with the Equal Employment Opportunity Commission (EEOC)'s guidance, which cautions against use of arrest records and provides information for employers that consider convictions, including developing a targeted screen and undertaking an individualized assessment for individuals excluded by the targeted screen. For more information on this guidance and case law calling it into question, see Practice Note, Background Checks and References: Criminal Records.

Employers must also be aware of Fair Credit and Reporting Act (FCRA) requirements and various state law considerations that apply to background checks in the employment context, such as distinct disclosure and authorization requirements, ban-the-box laws, credit history bans, or mandating background checks for certain types of work.

Practical Law has a collection of resources to help employers understand and comply with their legal obligations regarding background checks:

For state versions of employment applications and background check policies, see: