Employee Background Check Laws in Arkansas

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law regulating background checks for employment. The FCRA applies to all employers, regardless of size, who use consumer reports (background checks) in making hiring, firing, or other employment decisions. The FCRA requires employers to: (1) obtain written authorization from the applicant before obtaining a consumer report; (2) provide a clear and conspicuous disclosure in writing that a background check may be obtained; (3) use only a consumer reporting agency subject to FCRA regulations to obtain the report; (4) provide the applicant with a pre-adverse action notice disclosing the report and allowing them to dispute inaccuracies before the employer takes action; and (5) provide a final adverse action notice explaining that the employment decision was based on the report.

The Equal Employment Opportunity Commission (EEOC) enforces the FCRA and has issued guidance stating that blanket policies excluding all applicants with criminal histories may violate Title VII of the Civil Rights Act of 1964. The EEOC requires employers to make individualized assessments of whether a criminal conviction is relevant to the specific job. Employers must consider factors such as the nature and severity of the offense, time elapsed since the conviction, and the nature of the job. Remedies for FCRA violations include actual damages, statutory damages of $100 to $1,000 per violation, attorney fees, and costs.

Arkansas does not have a comprehensive state background check law that supersedes federal requirements, but Arkansas Code Annotated § 34-1-403 specifically addresses employer use of criminal history in hiring decisions. Under this statute, an employer may not require an applicant to disclose, and shall not inquire about, an arrest that did not result in conviction, or any conviction that has been expunged, sealed, or dismissed under Arkansas law.

Ark. Code Ann. § 34-1-403 is stronger than federal law in one respect: it explicitly prohibits employers from asking about arrests not resulting in conviction or expunged/sealed convictions, whereas the FCRA does not directly restrict these inquiries (though the EEOC discourages them as potentially discriminatory). However, Arkansas does not have a statewide ban-the-box law like California or other jurisdictions that delay when employers can ask criminal history questions until later in the hiring process.

Under Arkansas law, all employers conducting background checks must still comply with FCRA requirements regardless of company size. The state law works in conjunction with federal rules: employers must obtain written authorization under the FCRA and must also comply with the § 34-1-403 restriction on inquiring about arrests without conviction or sealed records.

Arkansas law provides no additional state-specific remedies beyond those available under the FCRA. There is no Arkansas private right of action for background check violations; enforceability is through the EEOC and the Federal Trade Commission (FTC). However, applicants may pursue state law claims if background check practices violate other state statutes (such as discrimination laws) or common law theories such as defamation if false information is reported.

The FCRA contains several exceptions that limit background check requirements. Employers are not subject to FCRA requirements if they conduct background checks on themselves (in-house investigations), though this is narrowly construed. Government employers (federal, state, and local) have different rules under the FCRA and are not subject to all requirements.

Criminal convictions reported by background check agencies may be reported without time limits under the FCRA, with certain exceptions: civil suits, civil judgments, arrests, and unpaid tax liens older than seven years generally cannot be reported. However, background checks used for positions paying $75,000 or more may include convictions and arrests beyond the seven-year period.

Arkansas employers are not prevented from considering criminal history in hiring decisions; Ark. Code Ann. § 34-1-403 only prohibits inquiry into arrests that did not result in conviction or sealed/expunged records. An employer may still consider actual convictions in evaluating applicants, though the EEOC requires individualized assessment and prohibits blanket exclusionary policies.

Small employers are not exempt from the FCRA. There is no employee count threshold. Additionally, employers hiring independent contractors must still comply with FCRA if they obtain consumer reports on those individuals. Background checks for volunteer positions may also implicate the FCRA depending on the nature of the position and whether the volunteer is considered an applicant for employment.

Step 1: Document Everything. Keep records of when you were asked to provide authorization for a background check, the exact authorization form or disclosure provided, what information was sought, and the company that conducted the check. Save all notices and communications from the employer. If you were denied employment or fired, document the date, the stated reason, and any communications suggesting a background check was the basis. Take screenshots and save emails.

Step 2: Request Internal Dispute Resolution. Before filing an external complaint, contact the employer's HR department in writing and request an explanation for any adverse employment decision based on your background check. Ask for a copy of the background check report and any authorization you signed. Many employers have internal appeal processes, though none are required by law. Document this communication and any response.

Step 3: File a Complaint with the FTC or EEOC. For FCRA violations (improper authorization, failure to provide adverse action notice, inaccurate reporting), file a complaint with the Federal Trade Commission at www.reportfraud.ftc.gov or submit an online complaint at www.ftc.gov/complaint. For discrimination-based background check violations (such as disparate impact on a protected class or targeted questions), file with the EEOC at www.eeoc.gov/filing-charge-discrimination. The EEOC intake number is 1-800-669-4000. You have 180 days to file with the EEOC in Arkansas (or 300 days if the state has a deferral program, which Arkansas does not). Provide: your name and contact information, the employer's name and address, the date(s) of the violation, a detailed description of what happened, and copies of any relevant documents (authorization forms, adverse action notices, the background check report itself if you have it).

Step 4: Investigation and Agency Response. Once filed, the FTC or EEOC will conduct an investigation, typically within 30 to 60 days for the FTC and 30 to 90 days for the EEOC. Expect the agency to request documents from the employer and may conduct interviews. You will be notified of the findings. If the EEOC finds reasonable cause, it will attempt conciliation. If conciliation fails, you may receive a right-to-sue letter allowing you to file a private lawsuit in federal court. The investigation is free and confidential.

Step 5: Consult an Employment Attorney. Contact an Arkansas employment law attorney if (1) you received a right-to-sue letter and want to pursue a federal lawsuit, (2) the FCRA violation involved significant damages (such as loss of multiple job opportunities or reputational harm), or (3) you believe the background check violation is connected to discrimination based on race, age, disability, or other protected status. Many employment attorneys work on contingency (no upfront cost) for strong FCRA cases. You can pursue actual damages (lost wages, emotional distress), statutory damages of $100 to $1,000 per FCRA violation, and attorney fees in federal court. Contact the State Bar of Arkansas Lawyer Referral Service at 501-375-4606.