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Can background checks go too far? Tarlow, Breed, Hart & Rodgers, P.C. provides background on what is and is not allowed in a background check.

Friday, April 17, 2009

Nowadays, with security being a concern of both employers and employees alike, a background check for employment candidates has become more the rule than the exception. Yet when does the background check cross the line from an employer covering its bases to invading privacy—or worse, engaging in discrimination?

As part of its corporate law practice, Boston-based Tarlow, Breed, Hart, & Rodgers , P.C. ("TBHR") advises clients on the subject of background checks.  According to TBHR Business Litigation Attorney Lee Holland, "Most information available from a background check comes from government agencies and can typically include any of the following: driving records, Social Security numbers, credit records, criminal records, education records, court records character references, bankruptcy, incarceration records, past employers, property ownership, sex offender records, medical records, military records, personal references, neighbor interviews, character references, state licensing records, drug test records and Worker’s Compensation."

While that list can produce a lot of information about a potential employee, there are limitations as to how much of that information can be used in making a hiring decision. Most background checks conducted by an outside party follow the guidelines set by the federal government’s Fair Credit Reporting Act (FCRA).  Those guidelines dictate that the following information cannot be used in extending credit:

  • Bankruptcies after 10 years.
  • Civil suits, civil judgments and records of arrest, from date of entry, after seven years.
  • Paid tax liens after seven years.
  • Accounts placed for collection after seven years.
  • Any other negative information (except criminal convictions) after seven years.

"Employers walk a fine line when it comes to using certain types of information as a reason for not hiring a potential employer.  For example, a background check might indicate that the candidate had previously filed for a Worker’s Compensation claim. If it became known that a prospective employer, worried about the candidate's health, used that information as a reason for not hiring, the company could be sued for violating the Americans with Disabilities Act," said Holland.

Added Holland, "Obviously, a potential employer wants to know about the major red flags—criminal records, sex offender records, etc.  But a background check can backfire if it ends up with the company on the wrong end of a discrimination suit. That’s why if information discovered in a candidate's background check makes an employer question hiring them, it’s best to consult an attorney before acting in either direction."


About Tarlow, Breed, Hart & Rodgers, P.C.

Formed in 1991, Tarlow, Breed, Hart & Rodgers, P.C. is committed to providing high quality, comprehensive legal services to its clients. Featuring a breadth and depth of experience and perspective usually found only at larger law firms, Tarlow, Breed, Hart & Rodgers. P.C. offers sophisticated legal counsel to entrepreneurs, businesses, individuals, families, and institutions.

Tarlow, Breed, Hart & Rodgers’ areas of expertise include corporate law, employment matters, mergers and acquisitions, litigation and dispute resolution, estate planning, taxation, real estate, bankruptcy, and municipal law.

The offices of Tarlow, Breed, Hart & Rodgers, P.C. are located at 101 Huntington Avenue, Prudential Center, in Boston, MA 02199. For additional information, or to arrange for a consultation, please call 1-617-218-2000, e-mail, or visit