In today's competitive hiring landscape, employers are under increasing pressure to make informed, low-risk decisions when selecting candidates. Background checks are standard practice, and for good reason—employers want to ensure that the individuals they hire are reliable, trustworthy, and capable of performing their job responsibilities.
However, some employers are tempted to go a step further by conducting a civil records background check on prospective employees. This practice, while legal in some contexts, is fraught with ethical and legal concerns and can introduce more problems than it solves.
Before diving into the risks, let's break down the differences between criminal records and civil records.
A criminal record includes information about an individual's interaction with the criminal justice system—arrests, charges, convictions, incarcerations, and more. These are typically considered relevant to workplace safety, security, and trustworthiness. For instance, a criminal history of theft or violence may be pertinent for roles involving financial responsibilities or customer interactions.
On the other hand, a civil record stems from non-criminal disputes between individuals or organizations. Examples include civil court over debt collection, divorce proceedings, child custody battles, landlord-tenant disputes, tax disputes, breach of contract, personal injury claims, and other civil judgments. These matters are usually personal and private, and in most cases, they have little-to-no bearing on a candidate’s ability to perform a job.
Employers who rely on civil court background checks to evaluate candidates risk overstepping important legal and ethical boundaries.
One of the primary concerns is that declining an applicant after they conduct civil background checks can expose a company to potential litigation.
Civil cases often involve sensitive personal matters that are not indicative of an individual's professional behavior or competence. Denying someone employment because they were once in federal civil court—perhaps a messy divorce or a financial dispute during a difficult time—can be interpreted as discrimination or an invasion of privacy.
Unlike a criminal history, federal civil law does not reflect wrongdoing or unlawful behavior. In many cases, individuals are involved in civil suits not because they did anything wrong, but because they were seeking justice or defending themselves.
Another critical issue is that applicants generally have no opportunity to explain or defend a federal civil records check, especially when taken out of context. Employers digging through civil court documents are often interpreting incomplete or outdated information.
Unlike criminal convictions, which go through a rigorous legal process and offer clear outcomes, civil cases can be vague, unresolved, or settled for reasons that do not imply guilt or fault. Employers risk misjudging a candidate based on misunderstood or irrelevant personal data.
In a legal setting, it is notoriously difficult to demonstrate how civil records correlate with a candidate’s ability to perform a particular job.
Courts have upheld that any hiring criterion must be job-related and consistent with business necessity. If an employer cannot clearly explain how a past civil lawsuit affects someone’s capability to manage spreadsheets, lead a team, or operate machinery, then using that information in a hiring decision may be indefensible.
Moreover, civil records often involve protected characteristics—such as marital status, family matters, or financial hardship—that could make a hiring decision appear discriminatory. Employers who inadvertently rely on such information could violate anti-discrimination laws under Title VII of the Civil Rights Act or similar state laws.
This does not mean all non-criminal background checks are inherently problematic. For example, there are scenarios where a credit report is a relevant and justifiable part of the hiring process.
Consider a situation where an employer is hiring a Chief Financial Officer (CFO) or a bank branch manager. These roles involve handling significant financial assets, overseeing budgeting, or making fiduciary decisions. A history of severe financial irresponsibility—multiple bankruptcies, high levels of unresolved debt, or patterns of financial mismanagement—could reasonably raise concerns about a candidate’s suitability for such a position. In this context, a credit report offers insight into behaviors that may have direct implications for the role and the company's financial well-being.
Even in such cases, however, employers must comply with the Fair Credit Reporting Act (FCRA), which requires consent from the candidate and mandates a formal process if any adverse decision is made based on the report.
Similarly, there are circumstances when conducting a Motor Vehicle Record (MVR) check is entirely appropriate and even necessary.
For instance, if a candidate is applying for a job as a delivery driver, commercial truck operator, or chauffeur, their driving history is directly relevant to the position. An MVR can reveal license status, past violations, suspensions, or DUI convictions. This information is critical for evaluating risk, ensuring compliance with insurance requirements, and protecting public safety.
In such cases, the MVR is not about digging into a candidate's personal life, but a due diligence step related to core job functions. However, even here, employers must ensure they are applying MVR checks consistently and only where the job demands it.
Here is a detailed breakdown of the types of cases that fall under civil court records.
These are cases involving damage or injuries caused by someone else’s actions or negligence, such as car accidents, medical malpractice, or product liability.
Anything that arises from breaches of contracts, terms, performance, agreements, or enforcement of contracts or business deals are considered contract violations.
Disputes over property may be real estate, property rights and boundaries, title disputes, property damage, foreclosures, or evictions.
These are cases related to divorce, adoption, child custody, child support, paternity, and guardianship.
This includes anything involving unpaid debts, small claims, and liens.
These are cases where a person or business is unable to pay their debts and file for court protection.
This type of dispute includes contract breaches, partner disputes, or intellectual property.
These are cases of civil wrongs such as negligence, assault, or battery.
A class action lawsuit is where a group of people with similar claims, who have suffered similar harm, sue a defendant on behalf of the group. Examples can include consumer fraud, labor relations violations, infractions of federal regulations, etc.
These matters are related to wills, trusts, guardianships, and conservatorships.
In most instances, these are cases related to mental hospitalizations.
While often handled in a separate traffic court, traffic violations are generally considered civil infractions.
These are cases involving alleged harm caused by civil laws or policies that go to civil litigation.
Civil background checks might seem like a way to gain extra insight into a candidate’s history, but in practice, they offer more risk than reward when used for pre-employment background checks. Civil court cases delve into personal areas of a person’s life that are rarely relevant to their professional capabilities and can unfairly bias hiring decisions based on incomplete or misunderstood information. Worse, they can open the employer up to claims of discrimination or privacy invasion.
Employers should focus their pre-employment screening efforts on job-relevant, legally defensible criteria. Criminal history checks, credit reports, MVRs, and other background check reports have their place—but only when there is a clear, documented link between the information sought and the demands of the job.
By respecting privacy, applying consistent standards, and avoiding intrusive civil searches, companies can build strong, fair, and legally compliant hiring practices that attract top talent without risking litigation or reputational harm.
Please contact your certified HR expert for more information or to set up your background screening matrix. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.