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The Legality of Different Types of Background Checks

For whatever reason you may be considering conducting a background check on somebody – suspicious behavior, potential employment, online dating, filing a lawsuit – it’s essential to know the different types of background checks that are available to the general public.  Some informal background checks can be conducted online to get a general sense of a person’s past based on public records databases. Other more formal background checks are legally available, and sometimes required, for official decisions like determining employment, terminating employment or filing a lawsuit. Here are 5 of the most common types of background checks and their respective legality.

Driving Records

An employer looking to hire someone in the transportation industry, or someone who will be using transportation to carry out his or her job duties, will likely conduct a background check on the applicant’s driving history. This report may include vehicle registration, speeding tickets, traffic tickets and traffic accidents, and can be obtained legally from public records at the DMV.

Drug Tests

Though somewhat controversial, giving a potential employee a drug test before hiring or during employment is entirely legal, though not required unless in certain industries like the government or military. Employers may want to test for drugs in order to reduce liability, increase productivity or qualify for worker’s compensation discounts, yet they should also be aware of the potential for discrimination claims.

Citizenship/Legal Working Status

Though it is illegal under the Immigration Control and Reform Act for an employer to hire or fire a person based on citizenship status, this background check may be performed after an offer to hire is made. This law aims to reduce discrimination that occurs when employers selectively choose which applicants to screen based on how foreign they seem. Recently, however, some states are becoming more adamant about requiring legal working status as a part of the background screening process after hiring. Certain states use the E-Verify system to determine the legal working status of applicants based on their social security number.

Credit Check

Employers must obtain written consent from job applicants before conducting a credit check. The Fair Credit Reporting Act requires that if an employer decides not to hire a person based on information in their credit history, the applicant has the right to challenge this decision in a court of law. This is because statistics show that certain demographics are disproportionately affected by credit checks as a prerequisite to employment. Credit checks are most relevant for positions related to finance in order to verify a person’s financial competency. Also, it is illegal for an employer to discriminate based on whether the person has filed for bankruptcy.

Criminal History

Criminal background checks provide the big answers for a lot of people wondering about neighbors, family members or potential mates. Included in criminal background checks may be sex offender registration status, arrest records, incarceration history and other criminal convictions someone may want to know about. For the average person, it is possible to see someone’s arrest records and criminal history through online companies like, Instant Checkmate, or through state departments such as the TxDPS, which aggregate public criminal records data into a comprehensible report. In general, criminal background checks can bring to light relevant information about a person’s history, for example, by revealing a new neighbor’s sex offender status. They can also serve to scope out a date or assess an online buyer or seller. Employers, however, cannot use personal background check websites for screening purposes as they’re subject to specific state laws regarding how much they can screen applicants based on criminal history, which requires employers to go through a more formal investigation process. 

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