Can I not be offered a job based only on a background check?

UPDATED: Sep 30, 2022

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Can I not be offered a job based only on a background check?

After going through the interview process, drug screening, physical exam, calling previous employers and pulling my DMV records, I was told that everything looked great. However, as soon as my background check came back, I suddenly received an adverse action letter via email. Every opportunity I had I asked how far back do you go with the background check? I was told 5 years over and over. The criminal record they discovered is from over 7 years ago. It was a drug conviction, that is it, other than 1 speeding ticket from several years ago. What can I do if anything? Obviously, no one can force them to hire me but doesn’t this seem wrong?

Asked on January 6, 2017 under Employment Labor Law, South Dakota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

It may be wrong in a moral sense, but it is legal: as you correctly note, "no one can force them to hire me," which is the case--all employment is "employment at will" (unless there is a written employment contract), so the employer can freely decide who to hire, and who to not hire, for any reason at all, including a very old criminal record.

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