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Is it Legal to Conduct a Background Check Without Permission?

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A potential employer can dig into your background when you apply for, or accept, a job. It can seek information about your character, your financial and criminal history and your driving record, and use it to decide whether to hire you. But rules and limitations outlined by the Federal Trade Commission and the Equal Employment Opportunity Commission, along with some state and local governments, provide certain protections from abuse.

Need for Consent

Companies don't need your permission to get information about you from free and public sources, such as social media sites. But they must obtain your written consent to seek information from third-party providers, such as credit reporting agencies. You have the right to refuse consent to a background check, but if you do, you risk losing a job opportunity.

Employer Pre-Check Disclosure

When you consent to a background check, the employer must inform you that the report may affect whether you get hired or keep your job. It must also disclose any intentions to run periodic background checks after you're hired. This notice must be in writing and separate from the job application. If the background check is investigative, meaning it will rely on personal interviews to gather information about your reputation and lifestyle, you have the right to be informed about the nature and scope of the investigation, according to the Equal Employment Opportunity Commission.

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Background Checks and Negative Decisions

If you are refused employment or fired based on a background report, the employer must tell you that's the cause. It must provide you with a copy of the report, a written notice of your rights, and instructions on how to contact the report provider. It must also inform you that you are entitled to another free copy of the report from the provider and that you have 60 days to dispute its content and correct any errors. The employer must also tell you the report provider is not responsible for a negative employment decision and can't provide reasons for the decision.

Medical Background Checks

Your medical background is off-limits until you get a job offer. A company cannot ask or seek information about your medical history before they decide to hire you. Once you're hired, your employer should only conduct a medical background check if it has reason to believe you have a medical condition that poses a risk or prevents you from doing your job. In only rare cases can employers seek genetic information, such as your family's medical history.

Background Checks Without Consent

If a company conducts a third-party background report without your permission, contact the Federal Trade Commission. You, a federal agency or your state may have grounds to sue the company. The EEOC provides protection from discrimination that arises from background checks. Employers' policies for background checks must be consistent; they cannot investigate some applicants or employees more extensively than others for discriminatory reasons such as race, religion or national origin. If this happens, contact the EEOC.

About the Author

Felicia Dye graduated from Anne Arundel Community College with an associate's degree in paralegal studies. She began her writing career specializing in legal writing, providing content to companies including Internet Brands and private law firms. She contributes articles to Trace 775.com.

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