Background Check Laws: Can Employers Ask for an Applicant's Medical Records?

A prospective employers have access to a treasure trove of personal information, both online and offline, which may factor into their hiring decisions. Current background check laws prohibit employers from accessing certain types of information, including military and medical records, while drug screenings and credit reports require an employer's consent.

On the other hand, job applicants often unintentionally share embarrassing personal information with prospective employers through social networking sites and other Internet resources. As a job seeker, it makes sense to manage your online reputation and publicly disclose only that information which you would be willing to discuss in a job interview.

Background Checks: Restricted Information

When a potential employer conducts a background check, laws in most states prohibit the use of certain information in hiring decisions. While access to information that is a matter of public record cannot be restricted, use of certain public records in hiring decisions may be prohibited. The following types of records usually are off limits to employers:

Criminal Records: This varies widely from state to state, often depending on the type of work (such as child care facilities and law enforcement). Some states allow access to criminal records only with an applicant's consent, while others do not.
Educational Records: College transcripts often are considered relevant to a job application and may be obtained with an applicant's consent.
Military Records: Considered confidential under the federal Privacy Act.
Bankruptcy: While bankruptcy filings are a matter of public record, they may not be factored into a hiring decision.
Medical Records: When relevant to the job, employers may require a physical examination. Otherwise, medical records are confidential.
Workers' Compensation: A matter of public record, these records only may be used if relevant to the specific duties of the job.

Background Checks: Common Inquiries

Employers typically inquire about background information that is directly related to the job. For example, checking the driving records of an applicant for a flower delivery service is reasonable. But does it really make sense to check the driving records of someone applying for a job as a cashier? Still, the types of information that are permitted can seen quite broad.

The following types of records are commonly accessed in pre-employment background checks:

Credit Reports
Driving Records
Court Records
Property Ownership Records
Personal References
Drug Tests
Social Security Number
Character References
State Licensing Records
Past Employers
Sex Offender Lists

Credit Checks

Some states specifically prohibit the use of pre-employment credit checks unless the employer can prove its relevance to the job, while other states have no such restrictions. Applicants turned down for a job on the basis of a credit check are entitled to a copy of the credit report used in the decision, in addition to an explanation of the right to challenge it.

Credit background check laws are changing at both the state and federal level, to the benefit of jobseekers, in response to the growing (and increasingly controversial) use of credit checks by U.S. employers.

Get a Legal Case Review

Background checks can provide an employer with valuable information before making a hiring decision, but balancing the need for information with privacy rights and avoiding discrimination can be a delicate process. If you're considering using a background check, or are subjected to one, a lawyer can help determine your rights and obligations under local laws. Contact an attorney for a case assessment to discuss your situation and learn more.