Tennessee State Laws on Employer Background Checks

In Tennessee, a private employer can run a background check on a potential job candidate as part of the hiring process. In accordance with the state’s “ban the box” law, a public employer, like the state, is not allowed to ask about a candidate’s criminal records on the initial application form.

Some cities and counties have passed ordinances requiring background checks for certain staff. For example, the city of Memphis requires background checks for fire protection personnel.

Tennessee's “ban the box” rule applies to the state and any agency, authority, branch, bureau, commission, corporation, department or instrumentality of the state. It does not include a political subdivision of the state.

A state employer is allowed to require a criminal background check for a covered position. A covered position is a job for which a criminal background check is required under federal law or for which committing an offense is a disqualifying event for employment under federal or state law.

If the employer announces a position for employment that is a covered position, the announcement must include this statement:

• “‌Notice:‌ This position requires a criminal background check. Therefore, you may be required to provide information about your criminal history in order to be considered for this position.”

An employer is allowed to ask about an applicant’s criminal history after the initial screening of applications, for either a covered position or a non-covered position. If an employer asks about an applicant’s criminal history, the employer must provide the candidate with an opportunity to provide an explanation of their criminal history before making a hiring decision.

When considering an applicant with a criminal conviction history for a non-covered position, the employer must consider:

• ‌Duties.‌ Specific duties and requirements of the position.
• ‌Fitness.‌ Any bearing that the applicant’s criminal history has on their fitness or ability to perform the duties required by the position.
• ‌Time.‌ Amount of time that has elapsed since the applicant’s conviction or release.
• ‌Age.‌ Age of applicant at the time they committed each offense.
• ‌Offense.‌ Frequency and seriousness of each criminal offense.
• ‌Good Conduct.‌ Information produced by the applicant regarding their rehabilitation and good conduct since the offense, such as completion of an inpatient or outpatient substance abuse treatment program.
  
• ‌Public Policy.‌ Public policy considerations with respect to the benefits of employing an applicant with a criminal history. For example, if there is a bond provided for each candidate with a felony record hired by the agency, that would be an advantage of hiring the candidate, if they were suitable for the position.

The criminal history that the employer obtains is confidential, not subject to the state’s open records law.

Local ordinances are not part of the state’s “ban the box” law, yet they also prohibit discrimination in hiring individuals with prior convictions. Memphis’ ordinance applies to the city of Memphis and its divisions, departments, agencies and offices, except those specifically excluded by the ordinance.

Except as otherwise required by state and federal laws, Memphis may not ask about an applicant’s conviction history until after it has been determined the applicant is otherwise qualified for the position. City job applications must not contain a “box” or inquiry regarding a job applicant’s prior convictions. The ordinance does not apply to police, fire and emergency medical services positions.

How far back a background check goes depends on the company or entity compiling the report. A typical background check can look back 20 to 30 years. What shows up on the Tennessee background check depends on the preparer of the report.

A criminal background check typically includes information about misdemeanor and felony convictions, commission of infractions, and pending charges and arrests. What causes a candidate to fail on a background check depends on the job and its essential duties.

For example, multiple convictions of driving under the influence (DUI) would be highly likely to fail an applicant for a position as a school bus driver.

An applicant may have the opportunity to utilize the expunction process to have certain records erased from their criminal record. Expungement means the applicant does not have to state that they have suffered convictions that have been erased for certain applications.

Some misdemeanors are ineligible for expunction, such as domestic assault and a violation of a protective or restraining order. The applicant must successfully complete the expunction process before omitting information about the convictions on their employment application.

The Tennessee Bureau of Investigation (TBI) — not to be confused with the ‌Federal‌ Bureau of Investigation FBI — provides criminal background checks to the general public and qualified organizations. As to the general public, TBI allows members of the general public to purchase a Tennessee adult criminal history about any person.

The requesting party may complete the process online or by mail. TBI does not require fingerprints for this option. The cost is $29 per individual for which a record is requested.

The Fair Credit Reporting Act of 1970 (FCRA), a federal law, applies to employment background checks that relate to credit history, criminal history and past employer checks. All employers, public and private, that use a third party to conduct background checks must abide by the FCRA and the Equal Employment Opportunity Commission (EEOC) regulations.

FCRA states that an employer that seeks to get a consumer report, like a credit history for employment reasons, must notify the applicant in writing and obtain their written consent.

If the employer chooses not to hire the person because of the results of the report, they must provide the applicant with a pre-adverse action disclosure (pre-rejection letter notice) that includes a copy of the report and a copy of the person’s rights.

The employer must then provide the applicant with notice that it has chosen not to hire them. The notice must provide the name and address of the consumer reporting agency, like Experian, and share the applicant’s right to dispute the report.

If the employer asks a company to provide an investigative report based on personal interviews concerning their character, general reputation, personal characteristics and lifestyle, they must tell the applicant of their right to a description of the nature and depth of the investigation.

An applicant has the right to review all records in their name. They can ask a credit reporting agency to disclose their file and ask for a credit score and credit report. They can dispute mistakes in the report and seek damages from companies that violate their rights, like disclosing information because of a hacking incident.