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BACKGROUND CHECK Employment Background Checks Can an employment application ask about things that should not be reported? Can an employment application ask about things that should not be reported? The FCRA does not prohibit an employer from asking questions in an employment application. See FTC letters to Nadell and Sum: www.ftc.gov/os/statutes/fcra/nadell.htm www.ftc.gov/os/statutes/fcra/sum.htm For example, an employment application might ask if you have ever been arrested. The FCRA says a consumer reporting agency cannot report an arrest that from date of entry was more than seven years ago. It does not say the employer cannot ask the question. How to handle such questions on an employment application is of real concern to many people, especially those concerned with a youthful mistake from the distant past. State employment laws may limit the questions an employer includes on a job application. For example, in California an application may ask job related questions about convictions except those that have been sealed, or expunged, or statutorily eradicated, but applications cannot ask general questions regarding an arrest. www.dfeh.ca.gov/Publications/DFEH%20161.pdf It is important to remember, however, that even the restrictions on reporting imposed by the FCRA do not apply to jobs with an annual salary of $75,000 or more a year. (FCRA §605(b)(3). Aren't some of my personal records confidential? The following types of information may be useful for an employer to make a hiring decision. However, under the federal Fair Credit Reporting Act, the employer is required to get your permission before obtaining the records. (See PRC Fact Sheet 11, From Cradle to Grave: Government Records and Your Privacy, www.privacyrights.org/fs/fs11-pub.htm) Education records. Under both federal and California law, transcripts, recommendations, discipline records, and financial information are confidential. A school should not release student records without the authorization of the adult-age student or parent. However, a school may release directory information, which can include name, address, dates of attendance, degrees earned, and activities, unless the student has given written notice otherwise. (20 USC §1232g, www.ed.gov/offices/OM/fpco/ferpa/index.html) Military service records. Under the federal Privacy Act, service records are confidential and can only be released under limited circumstances. Inquiries not authorized by the subject of the records must be made under the Freedom of Information Act. Even without the applicant's consent, the military may release name, rank, salary, duty assignments, awards, and duty status. (5 USC §§552, 552a) For more on military records, visit the National Archives and Records Administration web site: www.archives.gov/facilities/mo/st_louis/military_personnel_records.html Medical records. In California and many states, medical records are confidential. There are only a few instances when a medical record can be released without your knowledge or authorization. The FCRA also requires your specific permission for the release of medical records. If employers require physical examinations after they make a job offer, they will have access to the results. The Americans with Disabilities Act allows a potential employer to inquire only about your ability to perform specific job functions. (42 USC §12101) There are other questions such as age, marital status, and certain psychological tests that employers cannot use when interviewing. These issues are beyond the scope of this fact sheet. If you have further questions, contact the resources at the end of this fact sheet. The federal Equal Employment Opportunity Commission and the fair employment agencies in the states handle these issues. What can my former employer say about me? Often a potential employer will contact an applicant's past employers. A former boss can say anything [truthful] about your performance. However, most employers have a policy to only confirm dates of employment, final salary, and other limited information. California law prohibits employers from intentionally interfering with former employees' attempts to find jobs by giving out false or misleading references. (California Labor Code §1050) Under California law and the laws of many other states, employees have a right to review their own personnel files and make copies of documents they have signed. If you are a state or federal employee, your personnel file is protected under the California Information Practices Act or the federal Privacy Act of 1974 and can only be disclosed under limited circumstances. (California Civil Code §56.20; California Labor Code §§432, 1198.5; 5 USC §552a) Jobs such as truck driver positions fall under regulations of the federal Department of Transportation. Employers are required to accurately respond to an inquiry from a prospective employer about whether you took a drug test, refused a drug test, or tested positive in a drug test with the former or current employer. (49 CFR §40.25, 49 CFR §382.413. Federal Motor Carrier Safety Administration Regulations) Who Conducts Background Checks?    [BACKGROUND CHECK] [BACKGROUND CHECK]