Employee Background Check Laws in Pennsylvania

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law governing background checks nationwide. Under 42 U.S.C. § 1681b, employers must obtain clear, conspicuous, and separate written authorization from the applicant before obtaining a consumer report (background check). The FCRA applies to all employers who use third-party background check companies, regardless of size.

The law prohibits employers from obtaining or using background checks for discriminatory purposes. The EEOC enforces the anti-discrimination provisions, ensuring employers do not use background checks in ways that have a disparate impact on protected classes (race, color, national origin, sex, disability, religion, or age). Employers must provide adverse action notice to applicants if they deny employment based wholly or partly on information in a background check, allowing the applicant 30 days to dispute inaccurate findings with the background check company.

The Federal Trade Commission (FTC) enforces the FCRA's procedural requirements. Remedies available federally include damages up to $1,000 per violation, attorney fees, and costs. Applicants can sue employers directly for FCRA violations. Background check companies must maintain accurate records and respond to applicant disputes within 30 days.

Pennsylvania does not have a separate state background check law that differs substantially from the federal Fair Credit Reporting Act. Employers operating in Pennsylvania must comply fully with federal FCRA requirements, including obtaining written consent before conducting background checks and providing adverse action notice if employment is denied based on background check results.

Pennsylvania does not have a state-specific ban-the-box law, which means employers are not prohibited from asking about criminal history on initial job applications or in preliminary interviews. This differs from states like California, New York, and Massachusetts, which restrict when employers can inquire about criminal records. In Pennsylvania, employers can ask about conviction history at any stage of the hiring process, though they must comply with EEOC guidance prohibiting discriminatory use of conviction information that creates a disparate impact on minorities.

The Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201 et seq., applies to consumer protection but does not add specific background check requirements beyond the FCRA. Employers in Pennsylvania are covered under the FCRA regardless of size, though the law's main applicability is when third-party background check companies are used. Pennsylvania courts recognize the right of applicants to sue employers for FCRA violations, and the state's contract and tort law allow for additional claims based on employer negligence or violations of consumer protection principles.

Unlike some states, Pennsylvania does not require cooling-off periods between when an employer receives background check results and when they can take adverse action. Employers also do not need state-specific written authorization beyond what the FCRA requires, though best practice is to use clear, separate authorization forms that comply with federal standards.

Pennsylvania employers are not required to conduct background checks at all; conducting them is optional. The FCRA exception for employment-related investigations conducted by employers or agents for screening purposes applies, though third-party background check companies must still comply with disclosure and authorization rules. Certain positions may have industry-specific exceptions: federal law allows background checks without FCRA compliance for positions involving national security clearances or certain financial institution roles, though these are rare in Pennsylvania.

Employers can use criminal background information to make hiring decisions without liability under Pennsylvania law, provided they do not do so in a manner that creates disparate impact on protected classes. The EEOC has issued guidance stating that blanket bans on all convictions may violate Title VII; however, Pennsylvania does not codify exceptions based on the nature, gravity, or recency of convictions. Employers may lawfully exclude applicants with convictions directly related to job safety or duties (e.g., driving convictions for commercial driver positions).

The FCRA includes a major exception for background checks not conducted by third parties: if an employer conducts background checks in-house without using a consumer reporting agency, some FCRA procedural requirements do not apply, though anti-discrimination rules still do. Additionally, the FCRA excludes certain public records from some compliance requirements, though Pennsylvania employers should treat all background checks as covered under FCRA standards to avoid liability. Employers are not required to accept disputed results or to re-investigate background check findings after an applicant disputes them, though they should provide opportunity for dispute and cannot ignore clear correction notices from background check companies.

**Step 1: Document Everything** Keep records of all communications with the employer regarding the job application and background check process. Save the original job posting, your application submission, and any emails confirming that a background check would be conducted. Request and retain a copy of the adverse action notice if employment is denied. Obtain a copy of your background check report from the background check company (you can request this free once per year from any consumer reporting agency). Document the specific reason the employer gave for denial and compare it to what appears in your background check.

**Step 2: Attempt Internal Resolution** If you believe there is an error in the background check, contact the background check company directly and dispute the inaccurate information in writing. Most companies have online dispute portals; file a dispute within 30 days of receiving the adverse action notice. Simultaneously, contact the employer's HR or hiring manager in writing, explaining the inaccuracy and providing evidence (e.g., court records showing conviction was expunged, or proof the incident involves a different person). Request that they delay the final hiring decision pending correction of the background check. Keep copies of all written communications with both the background check company and the employer.

**Step 3: File a Complaint with the Federal Trade Commission (FTC)** If the background check company fails to respond to your dispute within 30 days, or if you believe the employer violated FCRA requirements (e.g., obtaining background check without your consent, failing to provide adverse action notice), file a complaint with the FTC at reportidentitytheft.ftc.gov or by calling 1-877-438-4338. The FTC enforces FCRA compliance. Alternatively, file a complaint with the Consumer Financial Protection Bureau (CFPB) at consumerfinance.gov/complaint if the background check was conducted by a consumer reporting agency. Include copies of your adverse action notice, the disputed background check results, your dispute letter, and proof of mailing.

**Step 4: Monitor the Investigation and Dispute Response** The background check company must reinvestigate disputed items within 30 days and notify you of the results in writing. If they find the information is inaccurate, they must correct it and notify the employer. If they stand by the original report, you have the right to add a statement to your file explaining your dispute. The FTC may initiate an investigation into the background check company's practices if violations are systemic. Keep records of all timeline milestones: when you filed your dispute, when you received responses, and when correction notices were (or were not) provided.

**Step 5: Consult an Attorney if Necessary** If the employer has not corrected the background check or rehired you after inaccuracy is proven, or if you believe the employer deliberately used inaccurate information, consult an employment attorney licensed in Pennsylvania. FCRA violations carry statutory damages of up to $1,000 per violation plus actual damages, attorney fees, and costs. An attorney can file a private lawsuit against the employer in federal court (FCRA cases fall under federal jurisdiction) or in state court. File within the statute of limitations: federal law allows two years from discovery of the violation or one year from when the violation occurred, whichever is later. Pennsylvania attorneys specializing in employment law, consumer protection, or civil rights can handle FCRA cases.