Is That Background Check Legal?

When hiring a new employee, there are only so many questions you are able to ask under the law. Certain things that you’d like to know, simply aren’t permitted. At the same time, certain things cannot exclude qualified individuals from employment. It can be frustrating for employers and other options, like background checks, might sound like a great idea.

But, before you start that process, make sure what you want to find out is legal, and that you are taking on the task in the proper manner. This is important to protect your business in the future. Learn more about different options and the regulations that pertain to each below.

Criminal Record Checks

In many cases, you may ask whether the applicant for a specific role has a criminal record. This is especially important in certain fields. However, whether you are able to perform a criminal record check varies. If you would like to explore whether an applicant has a criminal record, its best to speak with a business law attorney for guidance prior to proceeding.

A Lie Detector Test

Life would be simple if we could subject everyone that we’d like to trust to a lie detector test before making any decisions. Unfortunately, in the business world, this is generally prohibited prior to employment or during the period of employment. While there are a few exceptions – armored car businesses, guard services and pharmaceutical distributors or manufacturers, this is not a viable option in most circumstances.

Medical Records

You want to know if your future employee will be able to meet your standards and that they’ll be reliable. Because of this, medical records may come into question.

However, under the Americans with Disabilities Act, you cannot make employment decisions or discriminate based on mental or physical impairment. Likewise, you cannot request medical records. While you are permitted to ask whether an applicant is able to perform required job duties, you cannot go any farther. This is a fine line to walk and it’s best to avoid it at all costs.

While medical records may be off limits, workers’ compensation records are considered public. However, you are only able to make a hiring decision based on what’s found if the injury would prohibit the applicant from performing the necessary duties the job requires.


Bankruptcies are on public records and would appear on credit reports. However, as an employer, you are unable to discriminate against potential employees because they have filed for bankruptcy at any point in the past.

Credit Reports

In many situations, employers can request credit reports – with the written consent of applicants. If you make a decision against hiring the individual due to the information found, you are required to provide a copy of the report to the applicant along with information on his or her right to challenge the report.

If you are considering using any of the aforementioned checks during the hiring process, or have questions relating to employee eligibility or hiring new employees, working with an experienced business law attorney, like Mike Hynum, is an excellent first step.

To set up a consultation, contact Hynum Law in Harrisburg, Pennsylvania today. We look forward to working with you.