A few years ago, most Americans would have assumed that the vast majority of employers didn’t conduct any form of background check upon initiating the application and hiring process. They probably would have been right. Over the last few years, however, background checks have become increasingly common in many workplaces. In fact, they’ve become so pervasive that the Equal Employment Opportunity Commission in the United States recently released a whole series of new guidelines concerning when these checks can take place and how they can be used in considering a candidate for employment at any company.

These guidelines, released in April of 2012, radically change the types of employers that benefit from background checks. It’s likely that their prominence will fall in many sectors of the economy, while they continue to dominate others. Here’s a look at the employers that do, and do not, typically conduct criminal background checks when hiring applicants.

Lessons from the Equal Employment Opportunity Commission: Is it Essential to the Business?

Recent updates to the Equal Employment Opportunity Commission’s fair employment guidelines state that background checks containing criminal information can only be retrieved and used when making hiring decisions in cases where it is essential to the function and integrity of the business. These incidences include, but are not limited to:

• Banks and other retail establishments where employees are routinely handling things like cash, bank deposits, and valuable products or information
• Federal employment that may or may not relate to child care and responsibilities that could suffer at the hands of someone with a sexual offense on their criminal record
• Other federal government jobs where such criminal information is deemed necessary to make a good decision
• State and local government jobs where the need for a criminal background check is deemed valid and necessary, like teaching positions and childcare, among others.

Aside from these positions, the employers that actually conduct background checks are a bit more spotty. This is a significant “gray area” that has existed within the United States for several years. There is no specific legislation that requires employers to check an employee’s criminal and other background information, but there’s also no regulation that specifically prohibits any employer from conducting these checks. Where the Equal Employment Opportunity Commission and other U.S. regulators are concerned is in the use of any background check information that a company actually acquires, rather than the act of actually acquiring it during the application process.

How to Know if an Employer is Going to Conduct a Background Check, and What to Know

First and foremost, employers are required to be up front about their use of background checks during the application and hiring process. Because conducting such background checks requires and extensive investigation into the job applicant’s information, a waiver will have to be signed that allows the employer to conduct a check of an employee’s arrest record and other information they’ve accrued over the course of their adult life.

Furthermore, all employers are bound by the regulations of the Equal Employment Opportunity Commission. As of April 25, 2012, employers must make it known that they conduct a background check on their applicants, if they conduct one. They must also make it perfectly clear how that information will be used when deciding whether or not to higher an applicant for any of their positions. They must make it known how a background check is relevant to the position that they’re trying to fill.

If an applicant to any job that conducts a background search is about to be denied a position based on the results of that search, the employer has to contact them and hear the employees “context” as it concerns their arrest record. Employers can deny employment based on the conduct that led up to an arrest, but they cannot deny employment based on an arrest record alone. Further, they must listen to an employee’s contextualization of their arrest record and judge whether or not the conduct they describe leading up to the arrest is conduct that will put the company’s best interests in harm’s way.

The Key is Not Whether Employers Conduct Background Checks, But How to Handle those Checks

Even as the Equal Employment Opportunity Commission works to make employment fair for those with criminal information on their background check, more employers are using such background checks before they hire new applicants. The important thing to keep in mind is that these background checks are not the ultimate deciding factor when it comes to an offer of employment at most major employers. Only for federal government jobs, child care positions, and major banking or cash handling positions, will background checks be a major factor.

Beyond that, employment applicants subjected to a background check are entitled to fair treatment and consideration. They’re also entitled to a chance to explain themselves and contextualize their record with their future employer if any negative information is returned.

Author Bio: Kristen Bright is the social media consultant for Instant Checkmate. Instant Checkmate is a personal criminal background check provider, and does not perform employment screening of any kind.