If you're hiring in California, New York City or San Francisco, the moment you run a background check is set by law, not by preference. Ask about criminal history too early and you have a fair-chance violation before you've read the background report. Run it too late and you're onboarding someone nobody has verified.
For most employers the safe point sits after a conditional job offer and before the first day. The offer is real, but conditional on the background report matching your criteria. That's where screening carries the least legal risk.
No single moment is fixed in federal law. Timing turns on state and local fair-chance rules, on the job duties, and on whether the role is regulated. Here's where background screenings sit in your hiring process, what the Fair Credit Reporting Act requires, and when to re-screen.
Why the conditional offer became the standard point
Fair-chance laws moved the question later
Ban-the-box laws restrict when you may ask about criminal history. The National Employment Law Project counted 37 states and more than 150 cities and counties with some form of the policy as of August 2025. Most push conviction questions into the post-offer stage, and the criminal background check follows.
The conditional offer model and the interview model
Jurisdictions split on the trigger. New York City makes you wait until after a conditional offer, with conviction questions off the application. California's Fair Chance Act covers employers with five or more employees and bars conviction inquiries before a conditional offer. Under Minn. Stat. 364.021, you wait until the applicant has been selected for an interview, or for a conditional offer where there's no interview.
What the EEOC guidance says, and what it means in Texas
The Equal Employment Opportunity Commission's 2012 enforcement guidance on arrest records and conviction records in employment decisions recommends keeping conviction questions off job applications and limiting inquiries to job-related exclusions consistent with business necessity. It's still published and hasn't been rescinded. One caveat in Texas: in Texas v. EEOC, 933 F.3d 433 (5th Cir. 2019), the Fifth Circuit enjoined the EEOC from treating it as binding, so employers under Texas hiring rules should treat the Green factors as best practice, not binding agency guidance.
Where background screenings fit in your hiring process
Employers conduct background checks to know who they're hiring and to limit negligent hiring claims.
Before or during the job application
Pre-application criminal background checks are restricted across much of the country, and running one before you've assessed a candidate on merit invites legal exposure. The substantive employee background check waits.
After the first interview
Where the interview is the trigger, you may begin criminal background checks once the candidate has been interviewed. Most employers hold off, because background screenings on every interviewee cost more and yield less.
After the conditional offer
Pre-employment background screening belongs here. You extend the offer, obtain written authorization, and order the background check the role calls for. KRESS builds the employee background check package around the role, so a warehouse hire and a controller aren't running the same searches.
During onboarding
Some background checks run alongside onboarding rather than before. Drug testing is one example, as is a driving record pull for a role involving company vehicles. Decide with your hiring managers what happens if a result lands late.
On promotion, transfer, or role change
When an employee moves into a role with different duties, such as handling cash, driving a company vehicle, or working with vulnerable people, many employers run a fresh employee background check. The FCRA treats this as an employment purpose, so the full screening process applies.
On a recurring schedule
Annual or rolling background screenings are standard in transportation, healthcare, and financial services, because continuous monitoring surfaces a new conviction or a suspended license between scheduled pulls. Periodic rescreening may be required by regulation or by company policy.
Timing rules that vary by state and city
Criminal history inquiries
San Francisco moved most recently, and the state-by-state compliance rules shift most years. Amendments to the city's Fair Chance Ordinance took effect on August 10, 2026, barring inquiry into out-of-state convictions and unresolved arrests for conduct lawful in California, including abortion-related healthcare, gender-affirming care, and drag convictions.
The confirmation mechanic matters. If an applicant submits information within seven days of your notice, you have 14 days to confirm receipt, and adverse action waits a reasonable period while you reconsider.
Credit history and financial history
Eleven states now restrict employer use of an applicant's credit history: California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington, and New York. Delaware restricts credit inquiries for public employers only, so it isn't in that count.
New York's law took effect on April 18, 2026 and bars requesting or using a credit report for hiring, compensation, or terms of employment. The exemptions are narrow: a security clearance, signatory authority over $10,000 or more in third-party funds or assets, a fiduciary role that can commit the employer to financial agreements of $10,000 or more, and roles requiring bonding under state or federal law. New York City, Chicago, Cook County, and Philadelphia add their own restrictions. Where a credit check is permitted, it belongs at the post-offer stage with the background check.
Your background check timing checklist
Here's the compliant background check sequence, in order. Run it the same way for prospective employees in the same role regardless of race, national origin, or age, and document any deviation.
- Screen resumes with no criminal history question on the job application.
- Interview and select your candidate on merit.
- Extend a conditional offer.
- Give the standalone FCRA disclosure and get written authorization.
- Order the employee background check through your screening services provider, then adjudicate the finished report against your criteria before anyone is marked eligible or ineligible.
- If the background report gives you pause, send the pre-adverse action notice with the report and the CFPB summary of rights.
- Hold the job open for the period your state or city requires, and let the candidate respond.
- Send the final adverse action notice if you still intend to withdraw.
Local law sets the floor, not the ceiling. Where your city is stricter, your city wins. KRESS manages the workflow and supplies the verified data. You make the hiring decision.
What the Fair Credit Reporting Act requires, in order
When you use a consumer reporting agency, the statute sets out a background check sequence that can't be shortened. Getting the order wrong is a common source of FCRA litigation. The Equal Employment Opportunity Commission and the Federal Trade Commission publish joint guidance on employer background checks, and you're expected to meet both.
Step one: the standalone disclosure and written authorization
Under 15 U.S.C. 1681b(b)(2)(A), before the employee background check is ordered you give the candidate a clear and conspicuous written disclosure, in a document consisting solely of that disclosure, and obtain written authorization. Liability waivers and state law notices packed into that document are what get employers sued. If you want that consent to cover later background checks, say so plainly, as the Federal Trade Commission advises.
Step two: certification to your screening partner
Under 15 U.S.C. 1681b(b)(1), you certify to your screening services provider that you made the disclosure, obtained consent, will follow the adverse action process, and won't use the report unlawfully.
Step three: what a background report contains
A comprehensive report is built from the components the role justifies. Most pre-employment background checks include some of these.
- Criminal records. County and federal criminal records searches, which come back carrying both a disposition and a processing status, and only one of those is what the court decided.
- Employment verification. Employment history confirmed with previous employers, where a false claim about work experience shows up.
- Educational background. Degrees confirmed with the school, plus academic transcripts where the coursework matters.
- Identity. Social Security number verification against official records.
- Professional references. Reference checks covering the candidate's work history.
- Licenses and driving. Professional licenses and motor vehicle records.
- Drug testing. Where the role requires it.
Step four: the pre-adverse action notice
If you're considering an unfavorable decision based in whole or in part on the report, 15 U.S.C. 1681b(b)(3)(A) starts the adverse action two-step process: send the candidate a copy of the report and the written description of their rights prescribed by the Consumer Financial Protection Bureau.
Step five: how long to wait
The FCRA sets no waiting period before the final decision. The familiar five business day figure comes from an FTC staff advisory opinion issued to Weisberg on June 27, 1997, which noted that the statute is silent and five days appeared reasonable. It's convention, not federal law. New York City requires you to hold the job open five business days, and California requires five with a further five on request.
Step six: the adverse action notice
If you proceed, 15 U.S.C. 1681m(a) requires notice to the candidate. The statute permits oral, written, or electronic notice, but send written notice anyway: it's the version you can produce two years later. Name the agency with its address and telephone number, say that it didn't make the hiring decision and can't explain it, and tell the candidate they may request a free copy of the report within 60 days and dispute it. Most FCRA suits turn on one of eight adverse action mistakes, and the most common is sending the final notice too soon.
Frequently asked questions about background check timing
Can you run a background check before making a job offer?
Sometimes, depending on the jurisdiction and the component. Potential employers may run identity and work authorization checks earlier. Criminal background checks are restricted by fair-chance laws in many states and cities, and credit checks in eleven states.
Do you need a candidate's permission to run a background check?
Yes. Federal law requires a standalone written disclosure and the candidate's written permission before you order the background check. A candidate can decline, and you can then decline to proceed.
How far back does an employment background check go?
It depends on the component and the state. The FCRA restricts several categories of adverse items after seven years, though criminal convictions are expressly excluded, and the restrictions don't apply where the role pays $75,000 or more per year. Several states, including California, apply seven-year limits with no salary exception.
What should you do if something turns up on the background check?
A record isn't automatically disqualifying, and the different types of criminal records carry different weight, so weigh the offense, the time that has passed, and the relevance to the job duties before the hiring decision is final. Then run the pre-adverse action process, so the candidate can correct an error first.
Can you run a background check without telling the candidate?
Not when you use a screening company. Disclosure and consent are mandatory, and no private information can lawfully be pulled from a consumer reporting agency for employment purposes without them. Employers searching public records themselves sit outside the FCRA, though equal employment duties still apply.
Should you screen each candidate or just the finalist?
Most employers conduct background checks on the candidate receiving the offer, which keeps cost down and the hiring process consistent. Whatever your policy, write it down, because inconsistency turns a defensible policy into a claim.
How long is a background check valid?
No expiry date exists in law. Many employers treat a background check as current for 30 to 90 days, then re-screen on a schedule. Regulated employers, including motor carriers and healthcare providers, work to fixed statutory intervals.
What can a candidate do to speed a background check up?
Candidates can tell their professional references that potential employers may call, and dig out pay stubs for any previous employment whose employer has closed. Reference checks and previous employment wait on somebody else.
How long does the background check process take?
No government agency or trade association publishes an industry average, so treat any background check turnaround figure as a vendor claim. At KRESS, 95 percent of reports are returned within 24 hours.
What slows a background check down
Delays are almost always about access. Some courts don't allow digital searching. KRESS researchers attend those courthouses in person, so an access problem shows up as a status note, not a silent delay. Employment history verification depends on former employers answering, and employment verifications fail more often through a defunct payroll provider than through the candidate.
When you screen people you've already hired
The FCRA covers current employees
Employment purposes is defined at 15 U.S.C. 1681a(h) to include evaluating a consumer for promotion, reassignment, and retention, not just hire. The disclosure, the written permission, and the two adverse action notices apply when you run a background check on a current employee exactly as for a job candidate.
Regulated drivers: the annual review
Motor carriers obtain a driving record for each driver at least once every 12 months and review it, under 49 CFR 391.25, keeping the record and a dated review note in the qualification file. At hire, 49 CFR 391.23 requires a three-year inquiry to each licensing authority, filed within 30 days.
Separately, 49 CFR 382.701 requires a full Drug and Alcohol Clearinghouse query before a driver performs a safety-sensitive function, and one query every 12 months after that. The annual query can be limited, with the driver's consent, but if it shows the Clearinghouse holds information on that driver, you have 24 hours to run the full query.
Why many employers repeat background screenings on a schedule
A one-time background check describes a candidate on one day, and a later conviction stays invisible until the next pull. KRESS runs the recurring employee background check on your schedule and flags what changed. You decide what it means.
What changed in 2026, and what did not
In a June 9, 2026 opinion, the Department of Justice Office of Legal Counsel concluded that the EEOC's Title VII disparate impact guidelines are unconstitutional. That matters less than it sounds. An OLC opinion doesn't have the force of law, doesn't bind courts, and doesn't amend Title VII. Disparate impact claims are still available to private plaintiffs.
The Uniform Guidelines on Employee Selection Procedures remain codified at 29 CFR Part 1607, though the EEOC has a proposed rule to strip their recordkeeping requirements. On June 29, 2026 the agency also voted to rescind its Affirmative Action Guidelines and Compliance Manual Section 607. Neither touches the 2012 guidance, so don't treat shifting enforcement priorities as permission to loosen a background check policy that's already job-related and defensible.
Getting the timing right
The safe pattern is simple: assess the candidate on merit, extend a conditional offer, obtain written permission, run the background check, and follow the adverse action process if the report changes your mind. A complex conviction assessment is worth a call to counsel.
San Francisco's amended Fair Chance Ordinance went live on August 10, 2026, and New York's credit check restriction has been enforceable since April 18, 2026. If your background check sequence was built before either date, it's out of date right now, and the exposure sits with you rather than with your vendor. Talk to a KRESS expert and we'll walk your sequence against the rules where you hire.
