Some State Background Checks Required; Others Permitted, Prohibited

BOSTON—HR professionals need to familiarize themselves with the background check laws of each state and locality in which their company operates, said Ellen Dunkin, senior vice president and general counsel with Amalgamated Life Insurance Company, speaking Oct. 19, 2015, at the Association of Corporate Counsel’s Annual Meeting. Based in White Plains, N.Y., Amalgamated offers collectively bargained insurance and pension benefits to union participants.

Dunkin said background checks are required for:

• Caregivers of children, the elderly and people with mental disabilities.
• Medical workers.
• Private detectives and security officers.
• Taxi and limousine drivers.

State Requirements

The lawfulness of background checks for other workers typically depends on the type of background check and state in which it is being conducted, Dunkin said.

She noted that driving records may be checked with written consent in seven states: Alaska, Arizona, Indiana, Nebraska, Utah, Washington and Wyoming. She said the records are usually checked to verify identification information and addresses.

California, Colorado, Connecticut, Illinois, Kansas, Nevada and Vermont prohibit background checks for credit information. An exception typically is made for financial institutions.

In Hawaii, credit checks are allowed to be used to refuse to hire if the credit information relates to a bona fide occupational qualification. In addition, in Hawaii the credit inquiry can be made only after a conditional offer of employment.

In Maryland, background credit checks are allowed after employment for bona fide purposes. Oregon and Rhode Island allow background credit checks as well.

Nexuswith Federal Laws

Some state laws permit genetic testing. But the Genetic Information Nondiscrimination Act generally prohibits the acquisition of genetic information.

Other state laws prohibit genetic testing as well. For example, California, Connecticut, Hawaii, Massachusetts, Michigan, Rhode Island, South Dakota, Washington and Wisconsin all prohibit genetic testing, she noted. New York prohibits it, except if an applicant has a higher risk of contracting a disease from working in a particular job.

The Americans with Disabilities Act prohibits medical inquiries before a conditional job offer. But some state laws are stricter. Hawaii prohibits medical inquiries. California, Massachusetts, Texas, Washington and Wisconsin specifically prohibit HIV testing.

These state laws are in addition to state ban-the-box laws and local ordinances that prohibit inquiries about criminal convictions on job applications, Dunkin said.

And new laws continue to be enacted, she said, noting that New York City recently has prohibited the use of criminal background checks prior to job offers.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.