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How to Legally Check a Potential Employee’s Background Before Hiring

February 27 2021 - As an employer, or as the employer’s representative (HR), background checks on potential employees can be conducted without breaking the law. However, there are legal limitations to what you can and cannot check about their backgrounds. These regulations must be understood by the employer or their HR department if they are to avoid legal repercussions later.

Find Out about Specific State Laws that Regulate Applicant Background Checks

There are both state and federal laws that regulate work-related background checks, but as is mostly the situation with bicameral legislatures, they may at times differ. However, state laws take precedence in this situation and they do not collide with any federal directives across most US states either. The difference between the state laws, on the other hand, may differ to some degree from each other. Therefore, take a look at your state government’s website and see what they have to say about making employee background checks. The following general rules will still apply in most states though:

  • The applicant/employee must be provided with a written notification that the company is about to perform a background check on them
  • The notification is to be sent separately from the employment letter, and it must inform the applicant that the check’s results may impact their employability
  • The employee/HR must have access to a written and signed consent letter from the employee, before initiating the check
  • Continuous background checks may be allowed, but only when the employer mentions that in the company policy
  • Interviewers must inform interviewees about their right to ask and be notified about the facets or aspects of the interviewee’s personal life, which might be questioned during an interview.

Verification Forms 1 - 9

There are 9 new verification forms that were introduced and immediately put into effect last year (May 2020). The forms must be filled and signed with due diligence by an applicant and the HR, before the applicant can become an employee of the concerned organization. They serve to verify employment authorization through the employee’s and the employer’s (HR’s) attestation. Additionally, Forms 1 - 9 serve to verify the identity of each employee under an establishment’s employment.

How to Get a Pre-Employment Background Check Done in 2021

Screening an applicant’s background is extremely important to keep any office or workplace safe for the other workers, which is in fact another legal obligation that rests on the employer’s shoulders. Every employer is legally obliged to provide the safest possible work environment to all their employees. To do that, however, you will need to hire an experienced agency that knows how to conduct corporate background checks in compliance with the latest legal standards. You can find more information about how background check agencies work competently and within the confines of the law by visiting DataCheck Inc.

The Fair Chance to Compete for Jobs Act of 2019 is expected to come into effect on December 20th, 2021. When it does come into effect, its conditions will likely be applicable on all businesses across the United States. For example, neither federal nor contractor agencies will be able to conduct a check on an applicant’s criminal background before sending them a conditional job offer. Although some exceptions to this rule will be allowed, depending on the applicant’s exact nature of criminal history, it could present a security issue down the line. However, the law has not yet come into motion, so you may want to take advantage of the gap between now and then.




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