Understanding the Legal Limitations of Background Checks: What You Need to Know

Are you considering looking into a subject’s criminal history for employment, renting an apartment, or doing a business deal? It’s tempting to know about a person’s criminal past. Still, you need to be aware of the laws regarding obtaining that information, even if it’s factual and its legalities.

Here’s an example: a prospective employer hired a private investigator to examine an applicant’s criminal history. The background check agency or investigator found the person’s criminal history and provided that factual information to the employer. However, the employer received a lawsuit from the applicant because, in California, a conviction of a crime of more than seven years is not allowed to be used for employment or hiring. Even providing that information to the employer was not proper, and the employer knowing about it would have been prejudicial to that applicant.

There are other specific examples in different states and federal levels where a criminal background check or knowledge of criminal background history may not be usable in making certain decisions. Employment is one, and often renting an apartment has limitations on it as well. You may only be able to use credit in some scenarios, and some insurance companies will use background checks before they issue insurance policies that may not be usable.

If you’re concerned about using a background check for criminal records or activities, you want to ensure that you get good legal advice about when, where, and how you can use that. Suppose you are a private investigator giving out criminal records to third parties. In that case, even if you say you have to use it correctly or have a client agreement that says you can only use it for legal purposes, you may want to find out how that person is using it so that it’s proper. Many clients may not know they can’t use criminal records for particular purposes and might think they can use them however needed.

If you’re a company that wants to know about specific criminal backgrounds and you want to make sure you get good information, you may want to search yourself because third parties not knowing what you’re using it for might not give you all the information. Part of the reason is there’s a lot of ambiguity depending on how you do criminal background checks. You may find incorrect information, such as finding a criminal record for Joe Schmoe when it might be a different Joe Schmoe. It might be someone with the same name who even lived in the same city, or it might be something where there was an arrest but not a prosecution. Many background check sources are just electronic databases that differ from the original source.

If you go directly to the government agency, the police department, the prosecutor, or the courthouse and find the records there, you know that those are correct. A lot of third-party electronic records are cheap, but they may be partially accurate. That’s part of the reason these laws are in place.

Using a background check is vital to know how and where you use that information and the source of it. Many of these online background check websites or date checkers don’t have a hundred percent information and don’t get records from every jurisdiction. They might be missing something. If it’s essential to get it, they may not check certain states because they’re too complex or expensive. So ensuring you understand how the background check is done is as important as getting it done because they’re not all created equal. Some are just electronic, basically, a Google search for that person, while some are very in-depth original source searches that give you proper information.