Can you Run a Background Check Before a Job Offer?

For many employers, the process of evaluating potential new employees is a daunting process. The paperwork, interviews, and training all add up to a short-term loss in productivity. However, making the correct candidate selection can drastically increase productivity for a company.

One of the most critical components of the candidate selection process for employers is the background check. This procedure allows employers to know if candidates have made decisions in the past that may affect job performance. A background check, depending on the particular service used, can include criminal records, credit history, education background, and, increasingly, social media evaluations.

It is common practice to conduct a background check on an employee after they have received their conditional job offer. This job offer is contingent upon, you guessed it, passage of a background check. So, if this offer depends on the outcome of the background check, can an employer simply perform the check prior to offering a job? Is this even legal?

The short answer is yes. Federally, in the United States, it is legal to conduct a background check prior to providing a job offer. However, there are a few states and jurisdictions where the local government either disallows this practice or limits it in some capacity. For example, some areas may allow a certain amount of screening prior to a job offer, but not a comprehensive background check.

Ban the Box Laws

An increasing number of states and districts have begun implementing a series of laws titled Ban the Box laws. The name of this law is a reference to the ever-familiar check box on job applications asking, “Have you ever been convicted of a crime?” These laws determine, among other things, when a background check can be conducted in the hiring process.

These laws were written in order to give all candidates a fair shot at obtaining employment. In other words, these laws aim to encourage employers to consider employee’s resumes and abilities prior to reviewing their past actions.

The states below have implemented Ban the Box laws in some capacity for private employers.

• California
• Colorado
• Connecticut
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• New Jersey
• New Mexico
• Oregon
• Rhode Island
• Vermont
• Washington

In addition, there are many cities in the United States that have implemented Ban the Box laws separate from state and federal legislature. For this reason, it is important for employers to contact their local government for Ban the Box information prior to the hiring process.

It’s worth noting that the phrase “background check” is a bit ambiguous. In some states with Ban the Box laws, simply asking the candidate about their legal history is considered a background check. Asking this question, or one similar, too early in the hiring process may introduce various legal issues for an employer.

The Equal Employment Opportunity Commission

In addition to Ban the Box laws, there is a governing body called The Equal Employment Opportunity Commission (EEOC) that governs discrimination in the workplace. This body of government encourages employers to consider candidate’s skills before denying them based on their background.

The EEOC urges employers to not disqualify employees simply because they have committed a crime. They mandate that multiple elements, including time since last offense and nature of offense are considered. Violations of EEOC guidelines can get an employer labeled as “discriminatory”, and will often come with hefty penalties, both legal and financial[4].

After establishing legality in their certain location, it’s important to evaluate whether or not an employer should conduct a background check prior to providing a job offer. This timing is extremely important, and just because it is legal in a certain area doesn’t necessarily mean it is a good decision for an employer.

Pro’s

Performing a background check prior to providing an offer allows employers to not waste time on candidates that will eventually be eliminated from contention. Imagine interviewing multiple candidates, over a period of weeks or even months. You finally find a candidate that you believe is a perfect fit and provide him or her with a job offer contingent on passage of a background check. To your dismay, the background check reveals something that disqualifies them from the position. Now you must scramble to call the runner-up and hope that they still have interest in the position.

Con’s

Unfortunately, there are a few con’s when it comes to conducting a pre-offer background check.

One of the primary negative aspects of this methodology is that it can expensive. Let’s say that a state-wide background check costs $30, which is just about average. An employer that has 25 candidates applying for a job will then spend $750 on background checks alone. This is in addition to the inherent costs associated with lost productivity during the candidate-search procedure.

This procedure may also provide candidates with a false sense of hope that they have received the job in question. If they are an experienced candidate, they have likely experienced the practice of receiving an offer prior to conducting a background check. If this is the case, at the mention of a background check, they may believe that they have essentially secured the job. This may cause them to prematurely leave their existing job or spend money that they don’t yet have.

When to Conduct a Background Check

The optimal timing of a background check is not available as a straightforward answer. There are a variety of factors that need to be evaluated to establish proper timing for this procedure, and ultimately, the decision is up to the employer.

For a small company that only has a handful of candidates applying for a job, it may be worthwhile to conduct a background check prior to the offer. However, a company with dozens of applicants may find it difficult and expensive to conduct a background check on every candidate.

Of course, there is always a middle ground. Perhaps a large company will filter through candidates based on resumes and applicable skills. When the candidates have been vetted and have reached a reasonable number, the employer may now want to conduct a background check on the remaining few.

In addition, a company may only want to perform certain portions of a background check at different stages of the interview process. For example, perhaps the employer determines the education and reference check to be of the utmost priority, so they perform it early in the applicant selection process. It is unfortunately very common for candidates to exaggerate their accomplishments on their resume, so this ideology is fairly common in business world.

Conclusion

For decades, background checks have made the employee screening process far easier for employers across the world. This powerful tool is made even more versatile if used at the correct time during the hiring process. However, in order to avoid potential legal action, it is extremely important for employers to check with their local government to determine the legality of their procedures. In short, it is up to the employer’s discretion, in conjunction with applicable Ban the Box and EEOC laws, when and how to use this tool.