Can background checks be conducted on independent contractors and other contingent workers?

In general, employers may conduct background checks on all individuals performing work at their worksites including independent contractors and other contingent workers. Many employers conduct background checks on all workers in an effort to reduce risks and liabilities related to staffing practices, and some employers are required by federal, state and local laws to conduct background checks.

When determining if an employer should conduct background checks on independent contractors and other contingent workers, employers should consider any legal requirements, client agreements, government contract requirements and common industry practices.

Employers governed by state requirements and employers working with sensitive populations, such as minors, the disabled and the elderly, typically have to conduct background checks on all workers who may have contact with their client population. Some employers in specific industries, such as those related to national security, employers with government contracts, and positions requiring security clearance and other security-sensitive positions, are also generally required to perform background checks on all workers. This will, at times, include independent contractors and other contingent workers hired to perform work for the employer.

In addition, the Fair Credit Reporting Act (FCRA) would likely apply to any of these checks when an employer uses a third party to run them. The Federal Trade Commission (FTC) has opined that the FCRA's definition of "employment purposes" covered by the act would include checks conducted on independent contractors.