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Helping You Navigate Workplace Issues in California

Do You Need an Employee Background Check?

Hiring decisions are critical determinants of your company’s future success. And while interviews and resumes provide a good foundation, it can be advisable to procure additional information for a truly informed decision regarding a candidate.

That said, it is important to understand what information you can legally access and use to make hiring decisions.

The legality of obtaining background information

  • Credit Reports: Written consent from the potential employee must be obtained before ordering their credit report. If your decision not to hire them is based on what is in the credit report, you must provide them with a copy and advise them of their right to challenge the report under the FCRA.

  • Criminal Records: The laws regarding an applicant’s criminal history vary from state to state. In Florida, certain types of employers (health care providers, schools, day cares, and senior citizen homes for example) are required to perform criminal background checks on all employees.
    Other employers may conduct a criminal background check, but they are not required to do so by law. The law specifies whether past convictions disqualifies an applicant from employment. In Florida, convictions for felonies or first-degree misdemeanors which are directly related to the type of work the person will do in that profession can serve as acceptable ground for denying someone employment.
    Important note: The information found in a criminal background check can only be used to ascertain if the applicant meets Florida’s legal minimum requirement for employment. It may, however, be disclosed to another employer upon request.

  • Lie Detector Tests: Under the Employee Polygraph Protection Act, most private employers are prohibited from administering a lie detector test before or after hiring and individuals. (Exceptions include businesses who provide armored car services, alarm or guard services, or those that manufacture, distribute, or dispense pharmaceuticals.)

  • Medical Records: Employers may not request medical records or discriminate based on any physical or mental impairment. However, they may inquire about a potential employee’s ability to perform particular job duties.

  • School Records: Schools must have the student’s consent before releasing transcripts and recommendations.

  • Bankruptcies: While bankruptcies are a matter of public record, employers may not discriminate against applicants because they have filed for bankruptcy.

The Legality of Using Background Information

In utilizing background information, it is always important to consider federal laws, enforced by the Equal Employment Opportunity Commission (EEOC), that protect applicants and employees from discrimination. All applicants must be treated equally. If the decision to do a background check on a particular applicant is based on their race, color, national origin, sex, or religion; disability; genetic information (including family medical history); or age (40 or older), it is evidence of discrimination and against the law.

The Genetic Information Nondiscrimination Act (GINA) also prohibits employers from trying to get an employee’s genetic information, including their family medical history, except in rare circumstances. Even if you are in possession of this information, do not use it to make an employment decision.

All employers should acquaint themselves with the laws related to background checks before they embark on the hiring process. It will help them avoid any potential legal issues related to the subject.

To discuss any questions or issues related to employee background checks, please contact us online or call our offices at (561) 653-0008 to learn how we can help you. At Scott • Wagner and Associates, P.A., our approachable and knowledgeable attorneys are dedicated to providing skilled legal representation for your unique situation.         


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* Cathleen Scott is licensed to practice in Florida only.

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