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Pre-Employment Background Checks: What’s Legal & What’s Not (Expanded Definition)

Pre-employment background checks are a common practice for employers to verify candidates' history, but understanding the legal boundaries is crucial for job seekers. This blog post outlines what information can be legally accessed, your rights during the process, and how an attorney near you can assist if you feel your rights have been violated.

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Pre-Employment Background Checks: What’s Legal & What’s Not (Expanded Definition)
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Pre-employment background checks are a common practice for employers to verify candidates' history, but understanding the legal boundaries is crucial for job seekers. This blog post outlines what information can be legally accessed, your rights during the process, and how an attorney near you can assist if you feel your rights have been violated.
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Learn about the legalities of pre-employment background checks, including what employers can check and your privacy rights. If you believe your rights have been violated, consult an attorney near you to understand your options and protect your job opportunities.
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If you’re applying for a job, chances are your potential employer will run a background check before hiring you. But how much information can they legally access? What are your privacy rights? And can you be denied a job based on your past?
Pre-employment background checks are legal, but employers must follow strict laws to ensure fairness and prevent discrimination. If your rights were violated, an employment lawyer near you can help.
This guide breaks down what employers can and cannot check, your legal protections, and what to do if you were unfairly denied a job.
 
💡 For every post in this series, scroll down to “Related Posts.”

What Is a Pre-Employment Background Check?

A pre-employment background check allows employers to verify a candidate’s:
  • Criminal record
  • Employment history
  • Education & professional licenses
  • Credit history (in some cases)
  • Driving records
While employers have the right to screen applicants, they must comply with federal and state laws to protect applicants from discrimination and privacy violations.
💡 If you believe your background check was used unfairly, an employment lawyer near you can help.

What Information Can Employers Legally Check?

1. Criminal Background

Legal in most states
Cannot be used to discriminate
  • Employers can check for felony or misdemeanor convictions.
  • Some states have "Ban the Box" laws, meaning employers cannot ask about criminal history on job applications.
  • If a crime is old, minor, or unrelated to the job, employers may not be allowed to use it against you.
Illegal Uses:
  • Rejecting a candidate based on an arrest (not a conviction).
  • Using criminal records to discriminate against protected groups.
💡 If you were denied a job because of an old or irrelevant conviction, you may have a legal case.

2. Employment & Education History

Employers can verify past jobs & degrees
Cannot falsify records or misrepresent facts
  • Employers can contact previous employers to confirm your job title, dates of employment, and salary.
  • They can check educational records to confirm degrees and certifications.
  • They cannot contact your current employer without permission.
Illegal Uses:
  • Rejecting a candidate based on false information in the background check.
💡 If a background check falsely claimed you never worked somewhere or lacked a degree, you can dispute it.

3. Credit History

Legal in some industries
Restricted in many states
  • Some employers (especially in finance, banking, or government) can check your credit report.
  • Under the Fair Credit Reporting Act (FCRA), employers must get your written permission before pulling your credit report.
  • Many states ban or limit employer credit checks for hiring decisions.
Illegal Uses:
  • Running a credit check without your permission.
  • Denying a job solely based on credit score (except in finance-related roles).
💡 If you were denied a job due to a credit check, check if your state bans this practice.

4. Drug Testing

Legal, but must follow laws
Varies by state and industry
  • Employers can require drug tests, but policies must be applied equally to all candidates.
  • Some states have restrictions on drug testing (e.g., legal marijuana use in certain jobs).
  • Federal laws require drug testing for safety-sensitive jobs (e.g., truck drivers, pilots).
Illegal Uses:
  • Targeting specific groups for drug tests.
  • Testing in states where laws limit drug testing.
💡 If your employer targeted you unfairly, you may have a legal case.

5. Social Media & Online Activity

Legal if information is public
Cannot force you to give passwords
  • Employers can check public LinkedIn, Twitter, or Facebook profiles.
  • Some states ban employers from demanding social media passwords.
  • Employers cannot discriminate based on lawful online activity.
Illegal Uses:
  • Rejecting a candidate for legal off-duty behavior (e.g., political opinions).
  • Hacking or using fake accounts to access private profiles.
💡 If an employer rejected you for lawful personal posts, you may have a case.
Federal and state laws protect applicants from unfair background check practices. Here’s what you need to know:
The Fair Credit Reporting Act (FCRA)
  • Employers must get written consent before running a background check.
  • If they reject you based on the report, they must provide a copy and allow you to dispute errors.
Ban the Box Laws (in some states)
  • Employers cannot ask about criminal history on job applications.
  • They must consider rehabilitation and relevance to the job.
EEOC Anti-Discrimination Laws
  • Employers cannot use background checks to discriminate against race, gender, age, disability, or religion.
💡 If you believe your rights were violated, contact an employment lawyer near you.

What to Do If You Fail a Background Check

💡 If you were rejected because of a background check, take these steps:

Step 1: Request a Copy of the Report

The FCRA requires employers to provide a copy before denying you the job.
Look for errors or outdated information.

Step 2: Dispute Any Errors

If the background check contains false information, contact the background check company and ask for a correction.
The employer must wait until the dispute is resolved before making a final hiring decision.

Step 3: Check Your State Laws

If your criminal record shouldn’t have been considered, check if your state has Ban the Box protections.
Some states prohibit rejecting candidates based on old or minor convictions.
If you were wrongfully denied a job, an employment lawyer near you can:
  • Dispute errors in background reports.
  • File a discrimination claim if your record was used unfairly.
  • Sue for damages if an employer broke the law.
💡 If you believe your background check was used unfairly, consult an attorney.

Final Thoughts: Know Your Rights Before a Background Check

While background checks are legal, employers must follow strict laws to prevent discrimination and privacy violations. If you were wrongfully denied a job, you have legal options.
At ReferU.AI, we connect employees with top-rated employment lawyers near you. Our AI-powered system finds lawyers who specialize in background check disputes—so you get expert legal help fast.
Protect your job opportunities—get legal advice today!

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