The Background of Background Checks

To the chagrin of some, a background check is not a prerequisite for holding the position of United States Congressman. The Department of Justice recently indicted Congressman George Santos of New York’s Third Congressional District for wire fraud, money laundering, theft of public funds, and making materially false statements to Congress. The misrepresentations underlying these charges might have been discovered by a standard background check.

Some of these misrepresentations related to Mr. Santos’ education and work experience. In response to concerns that he had not in fact graduated from Baruch College, Mr. Santos admitted to having “embellished his resume” and that he had “not graduated from any institution of higher learning.” Mr. Santos indicated on his resume that he had worked for prestigious Wall Street employers Goldman Sachs and Citigroup. Representatives from each company denied to journalists that Mr. Santos ever held any type of employment with their groups.

While Congress may not have a background check requirement, there is no rule preventing more conventional employers from running such checks.  The Equal Employment Opportunity Commission (“EEOC”) states that “when making personnel decisions – including hiring, retention, promotion, and reassignment…it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require background check.”[1]

An employer may want to use background checks to prevent fraud and other detrimental behavior in the workplace. By screening potential employees’ backgrounds, employers gain valuable insights into their qualifications, character, and potential risks. This enables them to make informed hiring decisions and reduce the likelihood of disruption within their organizations.

There are certain rules that an employer must follow when conducting background checks. An employer must not check the backgrounds of applicants when the decision to do so relates to their membership in a protected class. In other words, employers cannot only pick out a certain group of people (people of a certain ethnicity, race, religion, etc) for background checks.

On the Federal level, background check laws are primarily governed by the Fair Credit Reporting Act (“FCRA”). The FCRA sets guidelines for employers regarding the use of consumer reports for employment purposes. The FCRA requires employers adhere[2] to a variety of guidance, including informing the applicant (or employee) that background check information will be used to make decisions about their employment and acquiring permission from the applicant/employee to perform a background check.

In the State of Colorado, an employer must consider additional legal requirements[3] when using background checks. The Colorado Employment Opportunity Act restricts employer’s ability to request or use credit information in relation to employment decisions. To request or use credit information, it must be “substantially related to the employee’s current or potential job.” Notably, the law does not cover certain types of employers, including banks and financial institutions, state or local law enforcement agencies, employers of private domestic servants, and employers who have less than four employees.

Another law that constrains a Colorado employer’s ability to run background checks is the Colorado Chance to Compete Act. This law prohibits employers of 11 or more people from “inquiring into an applicant’s criminal history on initial application for a position of employment.” It also prohibits employers from stating in a job posting that a person with a criminal history is prohibited from seeking employment. Notably, the law does not restrict employers from conducting a background check on applicants. As the name of the law suggests, its purpose is to provide applicants with a criminal record an opportunity – but it does not stop an employer from reviewing available background information about an applicant.

While there are certainly restrictions surrounding the use of background checks, it is undoubtedly a tool that an employer may use to vet candidates for hire or promotion. If such a check had been part of the Congressional process for Mr. Santos, perhaps the outcome New York’s Third Congressional District election would have been different.


[1] This joint guidance issued by the EEOC and the Federal Trade Commission (FTC) flags that employers may not ask certain questions related to medical and genetic information.

[2] This is a non-comprehensive list of procedures that an employer must follow. It is not meant to constitute legal guidance or advice – it is written for informational purposes only.

[3] See Footnote 2.