Employment Background Checks: What Employers Can and Cannot Access
A legal guide to employment screening practices, your rights as a job candidate, and how to prepare for background checks.
97% of employers conduct some form of background check. But what can they legally access? And what protections do you have as a candidate?
Legal Framework: FCRA and State Laws
In the United States, employment background checks are primarily governed by:
Fair Credit Reporting Act (FCRA)
Federal law requiring:
- Written Consent: Candidates must authorize background checks
- Pre-Adverse Action Notice: Warning before rejection based on report
- Adverse Action Notice: Formal notification if rejected with report copy
- Dispute Rights: Ability to challenge inaccurate information
- Agency Obligations: Consumer reporting agencies must ensure accuracy
⚠️ State-Specific Restrictions
Many states have stricter rules than FCRA:
- Ban-the-Box: 37 states limit criminal history inquiries
- Salary History Bans: 21 states prohibit asking previous salary
- Credit Check Restrictions: 11 states limit credit report use
- Social Media Laws: 28 states prohibit requesting passwords
What Employers CAN Check
✓ Generally Permitted
- Criminal records (with limitations)
- Employment history verification
- Education credentials
- Professional licenses
- Drug testing (pre-employment)
- Public social media (visible to all)
- Driving records (relevant positions)
- Reference checks
✗ Restricted or Prohibited
- Genetic information
- Workers' comp history
- Bankruptcy (over 10 years old)
- Arrests without conviction
- Private social media accounts
- Social media passwords
- Medical records (ADA protected)
- Salary history (many states)
Social Media Screening: What's Legal?
Public vs. Private Content
✓ Employers CAN Review:
- Public profiles (no login required)
- Professional networking sites (LinkedIn)
- Public tweets and posts
- Content visible to "everyone"
- Publicly shared photos/videos
✗ Employers CANNOT:
- Request social media passwords (28 states explicitly ban)
- Require friend/connection requests
- Access private accounts without permission
- Create fake profiles to access private content
- Retaliate for refusing to provide access
⚠️ The Gray Area
If you accept a connection request from someone who turns out to be affiliated with a potential employer, they may legally view "friends-only" content. This creates a legal but ethically questionable gray area.
Criminal Background Checks: Know Your Rights
Seven-Year Rule
FCRA limits reporting of:
- Arrests without conviction: 7 years
- Civil judgments: 7 years
- Tax liens: 7 years from payment date
- Accounts placed for collection: 7 years
Exception: Positions with $75K+ salary may allow older records
Know What Employers Will Find
Get a comprehensive background check preview before your job search. See what employers see.
Get Your ReportHow to Prepare for Employment Screening
✓ Pre-Job Search Checklist
- Order Your Own Background Check: See what employers will see
- Review Credit Report: Get free reports from all 3 bureaus
- Google Yourself: Check what appears in search results
- Audit Public Social Media: Review 5+ years of visible posts
- Verify Employment Dates: Ensure accuracy on resume
- Check Education Records: Verify degrees can be confirmed
- Prepare Explanations: Have context ready for any concerns
What to Do If You're Rejected
Your FCRA Rights
- Pre-Adverse Action Notice: Receive copy of report + summary of rights
- Dispute Period: You have time to dispute inaccuracies
- Agency Investigation: Reporting agency must investigate within 30 days
- Adverse Action Notice: Final rejection notice with contact info
- Free Report: Get another copy within 60 days
Key Takeaways
- 97% of employers conduct background checks—be prepared
- FCRA requires written consent before screening
- Employers can review public social media but not private accounts
- 28 states prohibit requesting social media passwords
- Seven-year rule limits reporting of most negative items
- You have rights to dispute inaccurate information
- Pre-adverse action notice gives you chance to respond
- Proactive screening helps you control the narrative
About Michael Patel
Michael Patel is an employment law specialist with expertise in background screening regulations, FCRA compliance, and employee rights. He advises both employers and job seekers on legal screening practices.