Ali Gordon | 19 May, 2021

Employment laws and policies are evolving in response to a range of hiring inequalities, and this means companies are creating workplaces with more labor rights and employee choices. But what about candidates’ rights prior to employment? 

This issue can come up in contexts when a candidate wants to deny a screening, but an employer feels uncomfortable hiring without it. Can candidates actually refuse a pre-employment background check?

Prospects Have the Right of Refusal Under Most Circumstances

A ‘pre-employment background check’ is a broad term to describe a variety of research practices a company may use to understand a candidate and verify their identity or qualifications. Companies should be clear about what kind of background check they really need, which may impact what kind of pre-employment screenings a prospect can refuse.

Because pre-employment background checks can be so broad, there are some types a prospect may not need to be notified of and, therefore, cannot refuse. For example, a company that screens publicly available information (like social media profiles) without involving a third party may not require candidate approval to do so. However, it is always in the best interest of a company to maintain transparent hiring practices, and this usually means informing candidates up-front about pre-employment screening policies of any kind. 

In other cases, employers are mandated to gain written permission to run a pre-employment check. If any third-party is retained to conduct a foreground or background check, even of publicly available information, it is always necessary for employers to obtain consent from candidates.

This is especially true for credit screenings. If an employer wants to run a check, they should deliver written documentation separately from applications or hiring paperwork. In this case, prospects do have the right of refusal: consent cannot be forced.

If an employee has granted indefinite consent--where an employer can pull a background check at any point from hire throughout employment--they can also retract this in writing. 

Employers cannot run pre-employment checks discriminately, solely for people of a certain class, race, sexual orientation, religion, or gender. They also typically cannot ask for screening information like medical history or genetic information. In these cases, it is also appropriate for a candidate to refuse the check.

One clue for determining if background checks are being requested uniformly is to see if the job application also posts the company’s background check policies. Candidates who think there is a legal violation or discrimination in the pre-employment process may absolutely deny a screening request and potentially even seek action against the company.

What Candidates Need to Know: The Risk of Refusal

In many cases, candidates are well within their rights to refuse a background check, but there are risks to this.  When within their own legal rights, employers may still terminate the recruitment process or employment relationship if a screening is refused. 

The company may also ask why a candidate or employee has refused, and it is still a candidate’s choice to disclose or not. Ideally, the employer will also offer its confidentiality policy to allow for an informed decision, but in some roles, background checks are expected for hiring or ongoing employment. 

In all cases, however, anti-discrimination laws still apply and may protect against unlawful practices if a candidate or team member denies a background check. If criminal legal history is the reason for refusal, for instance, employers must still follow state and federal anti-discrimination laws.

The U.S. Equal Employment Opportunity Commission explains, “Several states' laws limit employers' use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. If you have questions about these kinds of laws, you should contact your state fair employment agency for more information.” In some states, the 7-year rule is another legal protection against how far back an employer can go into candidate history during a pre-employment check. 

Candidates should seek companies that transparently outline various federal and state protections alongside internal pre-employment policies; taking this approach ensures they are more likely to end up in healthy professional relationships that last.

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