Background Screening: What Employers Should Know in 2026 (February 2026 TogetHR Times)
The background screening process remains an important part of the hiring process, helping employers make informed decisions while maintaining workplace safety and compliance. At the same time, evolving laws and regulations continue to shape how and when employers can use criminal history information. Here’s a high-level overview of today’s best practices, recent legal trends you should know and key considerations to build compliant screening programs.
The Purpose of Background Screenings
Background screenings can help verify a candidate’s identity, employment history, education, and, where appropriate, criminal records. When used correctly, screening supports risk management, protects your organization’s reputation and promotes a safe work environment.
However, background screening must always be conducted in a fair, consistent, and legally-compliant way. Employers should ensure that their screening practices are job-related. Background screenings should be non-discriminatory, and also aligned with both federal and state regulations.
Understanding “Ban the Box” Laws
“Ban the Box” laws restrict when employers can ask about an applicant’s criminal history. These laws are designed to give candidates a fair chance to be evaluated based on their qualifications, and before their background is considered.
While requirements vary by state and locality, many Ban the Box laws generally:
prohibit criminal history questions on initial job applications,
delay background checks until later in the hiring process (often after a conditional offer), and
require individualized assessments before adverse decisions are made
Some laws apply only to public employers, while others cover private employers as well. Because local ordinances may impose stricter rules than state law, it’s important for employers to understand the specific requirements where they operate and build compliant, consistent processes accordingly.
Individualized Assessments
When criminal history is considered, many jurisdictions require an individualized assessment rather than an automatic disqualification. This typically involves reviewing the nature and severity of the offense, how long ago it occurred, whether it is relevant to the job’s duties and scope and evidence of rehabilitation.
This process helps ensure decisions are fair, defensible and aligned with Equal Employment Opportunity Commission (EEOC) guidance. This can be very important if your organization faces a future EEOC claim.
Fair Credit Reporting Act (FCRA) Requirements
When using a third-party background check provider, employers must comply with the Fair Credit Reporting Act (FCRA). Clear documentation and consistent procedures are essential for compliance. Key requirements include:
Providing written disclosure and obtaining candidate authorization
Issuing a pre-adverse action notice before denying employment based on a report
Allowing the candidate time to dispute (or respond to) inaccurate information
Sending a final adverse action notice if a decision is made
Recent Trends and Updates
Across the U.S., more jurisdictions are expanding fair-chance hiring protections. Employers should regularly review their screening policies to ensure they reflect current laws and evolving best practices. Recent trends include:
Broader Ban the Box coverage for private employers - more states and cities are extending Ban the Box laws to private employers, delaying criminal history inquiries until later in the hiring process to promote fair consideration of qualified candidates.
Stronger notice and assessment requirements - employers are increasingly required to provide clear notices and conduct individualized assessments before taking adverse action based on background check results.
Increased enforcement of FCRA and anti-discrimination rules - regulatory agencies are stepping up enforcement of the Fair Credit Reporting Act and anti-discrimination laws to ensure hiring practices remain lawful and equitable.
Greater focus on data privacy and record accuracy - There is growing scrutiny on how background screening data is collected, stored and reported, with an emphasis on protecting candidate privacy and ensuring information is accurate and up-to-date.
Best Practices for Employers
Employers should take appropriate steps to maintain a compliant and effective background screening program.
Consider reviewing applications to remove prohibited criminal history questions. Use consistent, job-related screening criteria at all stages of the application and interview processes.
Once you’ve extended an offer to a candidate, partner with reputable screening vendors. Require screenings as part of a consistent onboarding process for each prospective employee. Train hiring managers on fair chance and FCRA requirements. Develop clear communication and documentation for individualized assessments. Finally, stay informed about state and local law changes, especially in states or cities from which you hire.
Final Takeaway
Background screenings are a valuable hiring tool. That said, this process should be used thoughtfully and legally. As Ban the Box laws and compliance standards continue to evolve, employers who prioritize fairness, transparency and consistency will be best positioned to attract potential talent while also minimizing legal risk. Clear policies, strong documentation, and regular training help reduce risk while promoting equitable hiring practices.
By Stefanie Gencer
