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In 2012, the Equal Employment Opportunity Commission (the federal agency responsible for enforcing anti-discrimination laws in employment) issued guidelines for the proper use of background checks. Proper use in this context means that there must be some connection between a potential candidate's criminal background and the job to which they have applied. If you're hiring for a position that will handle money frequently, it makes sense to consider whether or not an individual has a history of fraud or embezzlement. Other backgrounds might not be related to the position.

A simple three-part test dubbed the "nature/time/nature" test can help determine when there might be a legal problem if a job applicant has been denied employment due to their criminal history. It consists of a balancing of the nature of the applicant's offense, the time that has passed since that offense, and the nature of the job they have applied for. If an employer denies a Second Chance applicant a job based based on their criminal history, it will need to do so in a way that makes sense given these three factors.

In addition, the Fair Credit Reporting Act (FCRA) governs employers that use consumer reports such as criminal history and other public record information for employment purposes. FCRA requires employers to obtain consent from an applicant prior to obtaining the background check. FCRA also requires an employer to notify an applicant prior to and after taking an adverse action (decision not to hire) when that decision is based on the background check.