Could a Background Check Hurt Your Job Search?

Public records are a key component of a background check. Your public records include arrests, court records, marriages and divorces, address history, deeds, and licenses.

Depending on how broadly the background check is focused, a public records search service may also find private information that is nonetheless available to public view, such as social media profiles with private companies who allow searching.

Leading online background check service PeopleWhiz is an example of a records search that can bring up this kind of private data as well as public records.

All background checks are not the same.

Background checks fall into two categories. The first kind is a background report sourced from public records near and far (the kind of investigations PeopleWhiz does). The other kind is an employment background check, which is a specialized use of public and private information to evaluate a job candidate.

Companies conduct background checks on prospective employees and volunteers for many reasons, such as:

• Public safety
• Legal requirements
• Liability
• Protecting vulnerable populations
• Customer assurance
• Avoiding a business loss

When you apply for a job, one step might be for you to review a consent page that notifies you of a possible background search should your candidacy move forward. This is common when you apply for a job in the public sector and is increasingly included as a step in online job applications for private companies too since it requires no effort for them to show you a screen and make you click OK to continue.

Background checks can be as limited as a verification of your Social Security number or can widen considerably to draw in driving records, credit reports, interviews with people who know you, drug test histories, and workers' compensation filings.

Regarding what most people view as the most harmful kind of record to a job hunt—criminal history—it is reassuring to know that some states limit access to criminal history.

The State Difference

Different states limit the kind of records that are public, the records an employer is allowed to look for when considering a job applicant, the records an employer can view but cannot use in hiring, and how far back an employer is allowed to look (e.g., seven years).

Criminal Records

Which state you live in makes a big difference. Each state has its own policy for storing, creating, and documenting the information on a convicted criminal.

Criminal records cover all types of crimes, including violations, infractions, misdemeanors, and felonies. Criminal records will include information on the arrest of the individual, the circumstances leading to the arrest, information on the individual arrested, their trial, the outcome of the trial should the verdict be guilty, incarceration, probation, parole information, and more.

Criminal records are open for anyone to see in Colorado and Texas, to name two states. Minor classes of misdemeanor might not be included. In Texas, any arrest, prosecution, and disposition of the case for someone arrested for a Class B misdemeanor or greater is pubic.

In some states it is against the law to deny employment to a person based on online court records.

The "default setting" for court records is to be public because citizens have the right to know the workings of their judicial system. Some states, like California and North Carolina, have been able to skirt the First Amendment protections that generally keep public records open to everyone by demonstrating a probability for the information to be misunderstood and misused. Basically, these states agree that our right to find employment, get insurance, or rent an apartment outweighs the general public's right to see our criminal records.

In these states, criminal histories (RAP sheets, from "record of arrests and prosecutions") compiled by law enforcement agencies are not public record, according to the nonprofit consumer rights group Privacy Rights Clearinghouse. Only certain employers can access criminal histories in those states when running a background check on someone who has applied for a job. The employers who qualify include public utilities, law enforcement, childcare facilities, and security guard companies.

Related
How and why to background-search yourself

A second example of how some states restrict access to "public" records is that employers in those states are forbidden from looking up certain records, and if they happen to access those records inadvertently, they are forbidden from using them when considering you for employment. Arrest records and bankruptcy filings fall into this category in California. In New York City, someone's credit history cannot be used in an employment decision unless the position falls under a short list of exceptions, and if so, you must be notified of the decision per the FCRA, an act which we discuss below.

Look up your state fast and easy.

See whether criminal history is a matter of public record in your state by looking it up at the simple and thorough Cornell Project for Records Assistance.

Financial Records

In addition to criminal records and public records, background searches often extend to credit reports. But here we all enjoy the protection of the federal FCRA, which promotes the accuracy of our financial information and how and when it can be used in employment decisions.

The Fair Credit Reporting Act limits what can be seen about you.

No matter which state you live in, you enjoy the protections of the Fair Credit Reporting Act (FCRA). This law preempts state law. States can create new laws to expand the protections of the FCRA, and many states do. Even better for citizens, any state law that seems to contradict the FCRA is null.

The act "protects information collected by consumer reporting agencies such as credit bureaus, medical information companies and tenant screening services. Information in a consumer report cannot be provided to anyone who does not have a purpose specified in the Act" (file).

One of the most important protections in the FCRA is the right not only to be notified if an employer seeks a background check on you from an outside company, but to authorize it beforehand. Note that the requirement for you to preauthorize a background search only applies if the employer requests the search from an outside company. Such a company is classified as a consumer reporting agency (CRA) and must comply with the FCRA. CRAs must investigate disputed information. They must also notify a job candidate if an adverse action is taken because of information in a background check.

On the other hand, if the company where you apply for a job conducts the background check in-house, such as by a clerk in Human Resources visiting your state's archives and databases individually, they do not need to notify you or get your OK first.

Under the FCRA, your background check cannot include:

• Bankruptcies after 10 years
• Civil court records after 7 years from date of entry
• Paid tax liens after 7 years
• Any other negative information after 7 years (except criminal convictions in states where such info is public)

Social Media and Hiring

While our public records are mostly out of our control, we do control our own social media presence. Online personas are increasingly important to job hunts and career advancement. Nowadays you should spend at least as much time editing and bolstering your social media profiles as you do writing and polishing your resume.

A recent CareerBuilder survey found that:

• 70% of employers use social media profiles to screen candidates.
• 54% have decided against hiring someone based on his or her profile.
• 57% are less likely to hire someone who cannot be found online.
• Half the companies surveyed said that they check the social media profiles of their current employees.

Conclusion

If you're looking for a new job or just seeking a promotion and are concerned about your public records, rest assured that perhaps laws in your particular state, as well as the federal FCRA, cover how employers can use criminal history and credit information and might even block access in the first place. After all, having employed, productive residents is in the interest of every state. Barriers to employment are generally low and quite specific to certain people applying for certain jobs.

Rather than stressing over whether an employer could hold one of your public records against you, your time would be better spent editing your social media presence, or building one if you don't yet have one.