Are Background Checks Required?

In most scenarios, employers are not legally required to conduct background checks on their job candidates. In fact, according to a 2016 survey by CareerBuilder, 28% of employers do not use background checks to vet their new hires. It is because there is no law mandating employment background checks that this 28% exists.

The question of whether to run a background check is more complex than any law can reveal. While many businesses do have the option to opt out of vetting their candidates, employers in some industries do not have the same freedom. Furthermore, not running a background check on an employee can have legal ramifications even if there is no law in place forcing your business to run background checks. Below, we have outlined some of the complexities of this conversation with the goal of helping employers better understand their background check obligations.

Industries Where Background Check Requirements Exist

There is no federal law that requires all employers to run background checks on all new hires. There are no state, county, or city laws that implement this kind of requirement, either.

Instead, background check requirements are decided more on an industry-by-industry basis. Even these laws can vary from one state to the next. As such, employers should always check to see if their industry is beholden to specific laws or regulations on background screenings. Here are a few industries where employers are almost always required to conduct background checks on new hires.

• Healthcare: Doctors, nurses, and other employees in the healthcare industry have extremely high levels of responsibility. Their decisions can make the difference between life and death for patients. Furthermore, healthcare workers often have access to patients who are young, elderly, or living with a disability—all among the most vulnerable segments of the population. For these reasons, healthcare employers often have more extensive background check requirements to satisfy than other types of employers. These background checks include criminal screening and verifications of licenses and education.

• Education: Federal law requires all public schools to conduct background checks before they hire new teachers or educators. In general, the education industry has some of the strictest background check requirements of any field. Typically, screening requirements are laxer at the higher education level.

• Law: Professionals in the legal field have a high level of power and responsibility. Lawyers are expected to represent their clients honestly, ethically, and to the best of their ability. They also tend to have access to confidential court documents and other sensitive information. Because of these factors, there are state and federal laws on the books mandating background checks for lawyers and other members of the legal profession. These checks might include criminal screenings and education and professional license verifications to ensure the lawyer graduated law school, passed the bar exam, and is licensed by the state board.
   
• Financial Services: Jobs in the financial services industry often involve access to money, client accounts, social security numbers, credit card numbers, tax information, and more. Because of these temptations, the risk for abuse in this industry—such as fraud, identity theft, and embezzlement—is unusually high. As a result, there are regulations laid forth in the Fair Credit Reporting Act (FCRA) that demand background checks for most personnel in the financial services industry. Employers should review the FCRA to see exactly what their obligations are, but it would be wise to conduct background checks on all employees in this industry.

These industries are not the only ones where background checks are required. There are often laws that require taxi drivers (and, increasingly, drivers for ridesharing companies like Uber and Lyft) to undergo background checks. Trucking companies are required to screen their drivers by the Federal Motor Carrier Safety Administration.

Due Diligence and Negligent Hiring

While most employers technically have the right to skip the background check step when hiring new workers, doing so is always a risk. Employers have an obligation to provide their employees with a safe place to work. They also have an obligation to make sure their company operations—and, by extension, the people they hire—do not pose a risk to customers, clients, or the public. Because of these obligations, a pre-employment background check is usually viewed as due diligence even if the employer is not technically required to run the check.

When an employer neglects to do this kind of due diligence, it can result in negligent hiring claims. Negligent hiring claims usually come from an individual or party claiming they were harmed by an employer’s hiring decision. These claims only hold water if there was something in the hired person’s background (a criminal charge, a drug use problem, a fraudulent college degree, etc.) that could have indicated they were dangerous, untrustworthy, or otherwise unsuitable for the job at hand. Essentially, negligent hiring means an employer missed something in an employee’s background that, if known, could have prevented an incident that legitimately harmed the victim making the claim.

Negligent hiring claims can fuel very expensive lawsuits against companies. Exactly what form the negligent hiring claim takes varies from case to case. In one situation, it might be an employee with a violent criminal history who attacks a customer. In another, it might be a drunk driver who crashes a company delivery truck and kills another driver. They almost always revolve around details the employer would have known (or been able to predict) had it run an adequate background check.

In nearly half of all states, employers have been found liable for negligent hiring. Such liability is not only expensive regarding settlement costs and other legal expenses but is also devastating for a company’s public image. To avoid these consequences, employers would be wise to conduct thorough background checks on all candidates. Even if there aren’t laws requiring a business to do these types of screenings, they help employers make informed hiring decisions and prevent headaches down the road.