How to Use Background Checks Ethically (and Legally)

By Tanya Williams of the non-profit Background Check Repair

Using background checks to vet employees, tenants, and child care givers can help provide peace of mind. Thanks to widespread access to public records, background check information is easier than ever to find. But, when conducting a search into someone’s background, knowing how to use the information ethically and legally is crucial, in order to avoid costly privacy violations.

This guide explains the legalities involved when performing background checks, whether you are verifying employment eligibility, or simply checking public records to ensure that the people around your family are trustworthy.

See also:

Types of Background Checks: Professional or Personal

Since certain records are available to anyone who looks, background checks fall into two categories, personal and professional.

Professional checks are used for employment purposes, loans, residency (rentals), adoption and for a variety of other verification requirements. There are specific federal and state government rules that dictate the methods that can be used to conduct professional background checks, as well as what can be done with the public information that is gleaned by them, as well as how to correctly dispose of the information.

Violating the law for a professional background check can garner severe and costly penalties for both businesses and individuals.[2] For example, if parents are performing a background check on potential nannies, or if an organization is conducting background checks on volunteers, the same professional rules apply.

Form: Request for Criminal Background Check

Running Personal Background Checks

When performing a personal background check, these are largely done for relationship reasons. Perhaps you are interested in learning the background of your daughter’s new boyfriend, or maybe you want to check out the new assistant coach on your child’s community sports team.

When you have a legitimate concern, or even just curious, you can check someone’s criminal record for personal reasons. But although you can access public records, be careful about sharing that information. Personal privacy violations can be carried to court, but you can avoid that consequence by following a few common-sense rules.

  • Don’t post someone’s criminal record on a social media site. In the event that you have the wrong record, they may have legal recourse against you.
  • Do make sure that you have the person’s correct name, and date of birth, if possible. This can help eliminate mistakes.
  • Do make sure to use a trusted, name-based search.
  • Do make sure to use national and state sex offender registries.
  • Don’t try to collect someone’s fingerprints without their knowledge or consent.
  • Don’t lie about who you are to obtain information.

Personal background checks can be a life-saving action, but you should be careful about using the information you find.

Professional Requirements for Background Checks

Professional background checks have specific requirements attached to them, in order to protect the privacy of the person being investigated. Since many checks return sensitive data about an individual, when using these checks to hire a caregiver or an employee, make sure to have the following procedures outlined, and make sure to apply the same checks to everyone.

#1. Create a Detailed Background Check Policy

A background check policy doesn’t have to be fancy. It just needs to be comprehensive and clear. Some of the items that should be added to the policy include:

  • Stated Purpose
  • Types of Checks Performed (such as, Criminal History, Driving Record, References, Education, Previous Work History, etc.)
  • Position Specific Checks (such as performing credit checks for executive positions)
  • Fingerprint Requirements
  • Volunteer or Non-Employee Checks
  • Detail Actions for Results

#2. Obtain Written Consent to Perform the Background Check

For any professional background check, written consent to perform the check is required by law. The Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of ‘64, outline many of the requirements, and the Equal Employment Opportunity Commission enforces the rules for consent, as well as other regulations.

These agencies and government statutes also dictate what can be considered as a disqualifying offense. However, each state has its own requirements concerning the use of background checks. For example, 11 states have passed laws that forbid background checks from reporting criminal convictions over 7 years old.

Likewise, many states and some cities have enacted “ban the box” legislation that prevents employers from asking about criminal convictions on job applications.

#3. Outline Passed and Failed Background Check Requirements

In your background check policy, make sure to outline any disqualifying offenses for every position. This is especially important when making a job offer before a background check is conducted. Some states require 

In addition to the requirements for each job, such as work schedule and tasks, make sure to outline what happens if someone has a failed background check after job offer. This is very important because it prevents any later accusations if you have to rescind the offer. 

Keep in mind that every state has its own background checks laws, so you should also reach out or contact your state’s Labor Department, Department of Health [1] or Department of Justice to gain more insights into keeping yourself compliant. 

When using background checks for either personal or professional reasons, knowing how to use them ethically and legally can save you both time and money. 

Works Cited

[1] Criminal History Checks – Mississippi State Department of Health. (n.d.). Mississippi State Department of Health. Retrieved October 17, 2022, from,0,206.html

[2] What Are the Employment Background Check Laws in New York? – Ottinger Employment Law. (2022, April 8). Ottinger Employment Lawyers. Retrieved October 17, 2022, from