Running a Lawful Hiring Process or Challenging a Background Report: A Practical Checklist

Labor and Employment > Hiring and Background Checks | Published 26 July 2026 - Updated 23 August 2026 | UpLaw - uplaw.us

How to Use This Checklist

Parts 1 through 8 are for employers, in process order. Parts 9 and 10 are for applicants. Part 11 is the annual audit. Doctrine behind any item is in the comprehensive guide; the narrative introduction is how hiring law actually limits an employer.

⚠ The two most common violations in this area are a background check disclosure combined with anything else, and a rejection sent before the applicant had a real chance to respond to the report. Both are documentary, both are class-wide, and both are free to fix.

Part 1 — Write the Job Description First

☐ Observe the work or interview the person doing it; do not copy the last posting.

☐ Separate essential functions from marginal ones, with the frequency and importance of each.

☐ State physical demands accurately — actual weights, actual frequency, actual duration.

☐ State schedule demands accurately, including any on-call or weekend requirement.

☐ List only credentials genuinely required, and be prepared to justify each as job-related under 29 C.F.R. Part 1607.

☐ Identify the qualifications that will be scored, which become the interview criteria.

☐ Have the description reviewed by someone who has done the job.

☐ Date it and store it with the requisition. It is the foundation of the accommodation analysis under 29 C.F.R. Part 1630 and the defense of every screening criterion.

Part 2 — Audit the Posting

☐ Remove age-coded language: "recent graduate," "digital native," "young," "energetic," and experience ceilings, each of which implicates 29 U.S.C. § 623.

☐ Remove gendered titles and pronouns, which implicate 42 U.S.C. § 2000e-2.

☐ Check physical requirements against the job description; overstated requirements screen out applicants with disabilities contrary to 42 U.S.C. § 12112.

☐ Include the pay range where transparency law applies, and check whether the obligation extends to remote roles; see remote and multistate work.

☐ State the accommodation contact for applicants who need one.

☐ Review sourcing channels for a referral-only or single-source pipeline that could produce impact.

☐ Confirm any vendor-supplied posting language meets the same standards.

☐ Save a dated copy of the posting as published.

Part 3 — Audit the Application Form

☐ No criminal history question where a fair-chance law applies, and no arrest inquiry anywhere.

☐ No salary history question where prohibited.

☐ No date of birth, graduation dates, or age.

☐ No disability, medical, or workers compensation inquiry.

☐ No marital status, children, childcare, or pregnancy questions.

☐ No citizenship question beyond whether the applicant is authorized to work, framed neutrally to avoid the problems in 8 U.S.C. § 1324b.

☐ No photograph request.

☐ Voluntary self-identification kept separate from the selection file.

☐ One form for all candidates, reviewed annually.

Part 4 — Structure the Interview

☐ Write a fixed question set derived from the job description.

☐ Ask every candidate the same questions, in the same order.

☐ Score against written criteria with a simple rubric and a sentence of justification.

☐ Train every interviewer, even briefly, with a one-page list of reformulations: availability rather than childcare; ability to perform the function rather than health; credentials held rather than graduation year.

☐ Prepare for volunteered information — note it, do not pursue it, do not rely on it.

☐ Respond to any accommodation need by beginning the interactive process, not by ending the interview. See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768.

☐ Retain interview notes and scores.

☐ Record the reason for each decision in a sentence naming the criterion.

Part 5 — Validate Selection Devices

☐ Inventory every device: tests, assessments, physical requirements, credential screens, and algorithmic filters.

☐ Obtain validation evidence before use, not after seeing results — the lesson of Ricci v. DeStefano, 557 U.S. 557.

☐ Measure selection rates by group where data permits, per 29 C.F.R. Part 1607.

☐ Consider less discriminatory alternatives with comparable predictive value.

☐ For physical tests, confirm they measure an essential function and determine whether the test is a medical examination, which may not be given pre-offer under 42 U.S.C. § 12112.

☐ For vendor tools, obtain the bias audit and validation study, and confirm accommodation availability; see automated decisions and artificial intelligence.

☐ Preserve the ability to explain why any candidate was filtered out.

Part 6 — Run the Background Check in Order

☐ Confirm a permissible purpose exists under 15 U.S.C. § 1681b before ordering anything.

☐ Deliver the disclosure as a standalone document. One page, nothing else on it — no release, no state notices, no at-will acknowledgment, not part of the application. This is the single most litigated employer error in the field.

☐ Obtain written authorization separately.

☐ Order the report only after both are signed.

☐ Where local law requires, wait until after a conditional offer before ordering a report that includes criminal history.

☐ On receiving the report, do not act immediately. Send the pre-adverse action notice with a copy of the report and the summary of rights.

☐ Wait a genuine, documented period during which the applicant may respond or dispute. Same-day sequencing does not satisfy 15 U.S.C. § 1681m.

☐ Consider any response and record the consideration.

☐ Send the adverse action notice identifying the agency by name, address, and telephone, stating that the agency did not make the decision and cannot explain it, and advising of the right to a free copy and to dispute.

☐ Act on any notice of address discrepancy by forming a reasonable belief that the report relates to this applicant, under 16 C.F.R. Part 641.

☐ Confirm whether you furnish data to an agency, which triggers duties under 15 U.S.C. § 1681s-2.

☐ Store the report securely and separately, with restricted access.

Part 7 — Criminal History Assessment

☐ Confirm what the jurisdiction allows you to ask and when.

☐ Never rely on an arrest without a conviction as the basis for exclusion.

☐ Screen out sealed, expunged, and diverted dispositions, which frequently should not appear at all; the agency's accuracy obligation is at 15 U.S.C. § 1681e, and the applicant's relief path is in criminal record relief.

☐ Conduct a written individualized assessment: the nature and gravity of the offense; the time elapsed since the offense and completion of sentence; and the nature of the job and its duties.

☐ Give the applicant the specific record relied on and an opportunity to respond, including evidence of rehabilitation and employment since.

☐ Consider the response in writing before the decision is final.

☐ Confirm any statutory bar actually applies to this role and this offense rather than assuming it does.

☐ Document why the exclusion is job-related and consistent with business necessity under 42 U.S.C. § 2000e-2 and the framework of Griggs v. Duke Power Co., 401 U.S. 424.

☐ Apply the same standard to every applicant.

Part 8 — Offer, Verification, and Onboarding

☐ Draft the offer letter with position, start date, compensation and its basis, exempt or non-exempt classification, at-will language where applicable, and every contingency stated expressly.

☐ Avoid language implying a term of employment, and do not incorporate the handbook by reference.

☐ Set pay from internal benchmarks, not from salary history, and confirm compliance with any transparency and equal pay requirements.

☐ Confirm every contingency was satisfied before the start date, in writing.

☐ Complete employment eligibility verification within the statutory timeframe under 8 U.S.C. § 1324a and the procedures at 8 C.F.R. Part 274a.

☐ Let the employee choose the documents. Requesting more or specific documents is document abuse under 8 U.S.C. § 1324b.

☐ Apply verification practices identically to every hire.

☐ For any post-offer medical examination, require it of all entrants in the category, store results separately and confidentially, and conduct an individualized assessment before withdrawing an offer under 42 U.S.C. § 12112.

☐ Begin the interactive process if an accommodation need appears.

☐ Confirm classification before the first pay period; see worker classification.

☐ Deliver required notices and retain acknowledgments.

Part 9 — For Applicants: During the Process

☐ Save the posting as a dated screenshot; postings are edited and removed.

☐ Keep a timeline: application date, interviewers' names, dates, and what was asked.

☐ Keep every document you sign, especially any background check disclosure and authorization.

☐ Redirect unlawful questions to the job rather than refusing outright: "I'm confident I can perform the essential functions — can you tell me more about the day?"

☐ Request an accommodation by naming the function and the adjustment, not a diagnosis.

☐ Do not volunteer protected information, and note it if you did.

☐ Ask for the pay range where transparency law applies.

☐ Note whether the disclosure you signed was standalone or combined with a release.

☐ If rejected after a background check, note the dates of the report, the pre-adverse notice if any, and the rejection.

Part 10 — For Applicants: Challenging a Report

☐ Request the report from the screening company; you are entitled to it.

☐ Read every field: identity information, addresses, employers, education, and each record with its disposition.

☐ Identify errors specifically — wrong person, sealed or expunged record, charge without disposition, wrong date, wrong disposition.

☐ Dispute in writing with the reporting agency, not the employer, because the reinvestigation duties run to the agency; see credit reporting and identity theft.

☐ Attach documentation: certified court dispositions, identity documents, sealing or expungement orders.

☐ Send by traceable mail and calendar the reinvestigation period.

☐ Ask the employer in writing to hold the position or to reconsider once corrected.

☐ Confirm whether you received a pre-adverse action notice with a copy of the report and a real opportunity to respond, as 15 U.S.C. § 1681m requires.

☐ Preserve everything, including the envelope and the postmark.

☐ Check the deadlines for any discrimination charge; see three hundred days and the process in employment discrimination charges.

Part 11 — Annual Audit

☐ Re-read every active posting for coded language and pay range compliance.

☐ Re-read the application form.

☐ Confirm the background check disclosure is still standalone and has not been merged into an onboarding packet.

☐ Sample recent hires and confirm the process ran as designed, including a genuine gap between pre-adverse and adverse notices.

☐ Review applicant flow and selection rates by stage where data permits.

☐ Revisit degree, experience, and physical requirements that have accumulated without justification.

☐ Re-verify vendor validation for every assessment and algorithmic tool.

☐ Audit verification forms for timeliness, completeness, and any pattern of document abuse.

☐ Confirm retention of applications, notes, scores, reasons, disclosures, reports, and notices.

☐ Record the audit, the findings, and the corrections, with owners and dates.

Part 12 — Interview Question Reformulations

Print this page and give it to every interviewer. It prevents more claims than any policy document.

Do not ask	Ask instead
Do you have children? Who watches them?	This role requires occasional evening and weekend shifts. Are you available for that schedule?
When did you graduate?	Do you hold the degree or certification this role requires?
How old are you?	Are you at least the minimum age required for this position?
Are you a U.S. citizen?	Are you legally authorized to work in the United States for any employer?
What is your first language?	This role requires written and spoken communication in [language]. Are you able to perform that function?
Do you have any disabilities or health problems?	This role requires [specific function]. Can you perform it with or without reasonable accommodation?
Have you ever filed a workers compensation claim?	Nothing. This question is not lawful in this context.
Are you married? Planning a family?	Is there anything that would prevent you from meeting the attendance requirements of this position?
What church do you attend? Can you work Sundays?	This role requires availability on [days]. Are you available? If an accommodation is needed, we will discuss it.
Have you ever been arrested?	Nothing at this stage. Any conviction inquiry, where permitted at all, comes after a conditional offer.
What do you currently earn?	The range for this role is [X to Y]. Does that work for you?
Where were you born?	Nothing.
What was your military discharge status?	Did your service provide training relevant to this role?
Do you have reliable transportation?	Can you be at [location] by [time] consistently?
Are you in a union?	Nothing.

☐ Train interviewers on the left column, not just the right; people recognize the forbidden question more readily than they generate the permitted one.

☐ Have someone review the question set annually.

☐ If an unlawful question is asked by accident, note it, do not compound it by pursuing the answer, and do not rely on the information.

Part 13 — Documents to Retain

☐ Job description as of the requisition date. ☐ Posting as published, dated. ☐ All applications and resumes received. ☐ Interview question set, notes, and scores for every candidate. ☐ Selection device results and validation evidence. ☐ Written reason for each rejection. ☐ Standalone disclosure and authorization, signed. ☐ The consumer report itself, stored separately with restricted access. ☐ Pre-adverse action notice with proof of delivery, and the date the waiting period ended. ☐ Any applicant response and the record of its consideration. ☐ Adverse action notice with proof of delivery. ☐ Individualized assessment for any criminal record. ☐ Offer letter and contingency confirmations. ☐ Verification form and copies retained per policy. ☐ Accommodation requests and the interactive process record, stored confidentially and separately.

☐ Retain for the longest applicable period, and preserve everything relating to a position where a charge or claim is possible. Never destroy records after learning of a complaint.

Part 14 — Situation-Specific Runs

Hiring across state lines

☐ Identify every jurisdiction where a candidate may be located, not merely where the employer sits. ☐ Apply pay transparency in the posting if any covered jurisdiction reaches remote roles. ☐ Apply the strictest salary history restriction uniformly rather than by candidate. ☐ Apply fair-chance sequencing uniformly, which means no criminal history inquiry before a conditional offer. ☐ Check coverage thresholds; many state statutes cover employers with one employee. ☐ Confirm where the employee will actually work, because that determines wage, tax, and leave obligations; see remote and multistate work.

Using a staffing agency

☐ Never specify a demographic profile, in writing or in conversation. ☐ Require the agency to follow the client's lawful process, including the background check sequence. ☐ Confirm who obtains the consumer report and who gives the notices required by 15 U.S.C. § 1681m. ☐ Allocate compliance responsibility contractually, understanding that allocation does not eliminate joint-employer exposure. ☐ Confirm the agency's verification practices comply with 8 U.S.C. § 1324a and do not amount to document abuse under 8 U.S.C. § 1324b. ☐ Audit a sample of agency-sourced hires annually.

Filling a regulated position

☐ Identify the specific statutory bar and confirm it applies to this role. ☐ Confirm which offenses actually disqualify and for how long. ☐ Run the mandated screening through the required channel rather than a general vendor where the statute so requires. ☐ Do not extend the bar beyond its terms; a general felony exclusion is not a statutory bar. ☐ Document the basis for treating the position as covered.

Promoting from within

☐ Apply the same structure: posted criteria, consistent questions, scored evaluation, documented reasons. ☐ Do not rely on informal reputation or manager preference alone. ☐ Confirm that any test or assessment used internally has been validated under 29 C.F.R. Part 1607. ☐ Treat accommodation needs in the new role as a fresh analysis under 42 U.S.C. § 12112. ☐ Retain the same records as for external hiring.

Receiving a reference request about a former employee

☐ Decide the policy in advance and apply it consistently. ☐ Answer job-related questions truthfully; a qualified privilege protects good-faith responses in most states. ☐ Do not volunteer protected information — health, disability, complaints filed, or leave taken. ☐ Do not omit a known danger while giving an otherwise favorable reference. ☐ Route requests to a designated person rather than to individual managers. ☐ Document what was asked and what was said.

Part 15 — Ten Mistakes This Checklist Exists to Prevent

☐ Combining the background check disclosure with anything else. A release, the application, state notices, or an at-will acknowledgment on the same page defeats the standalone requirement in 15 U.S.C. § 1681b, and because the same form is used for everyone, the defect is class-wide.

☐ Sending the pre-adverse and adverse notices the same day. The pause required by 15 U.S.C. § 1681m has to be real.

☐ Excluding anyone with any conviction. A blanket rule produces disparate impact under 42 U.S.C. § 2000e-2 and is very difficult to justify.

☐ Copying the last posting. Requirements accumulate; each is a selection criterion under 29 C.F.R. Part 1607.

☐ Asking a friendly question about family, health, or age. The question itself creates the exposure, and pre-offer disability inquiries are prohibited outright by 42 U.S.C. § 12112.

☐ Asking for specific verification documents. The employee chooses; asking for more is document abuse under 8 U.S.C. § 1324b.

☐ Adopting an assessment because the vendor says it works. Obtain the validation and the impact analysis before use, not after.

☐ Recording "not a fit" as the reason. A file that cannot articulate a criterion cannot articulate a legitimate nondiscriminatory reason.

☐ Treating internal promotions as informal. The same rules apply and the process is usually weaker.

☐ Destroying records once a complaint appears. Preservation obligations attach immediately, and destruction converts a defensible decision into an indefensible case.

Part 16 — The Fifteen-Minute Version

For an employer filling one position and reading only one section, this is it.

☐ Write down what the job actually requires before you write the posting. ☐ Read the posting once more for age-coded words, overstated physical demands, and a missing pay range. ☐ Use one application that asks about qualifications and nothing else. ☐ Ask every candidate the same questions and write a score and one sentence of reasoning for each. ☐ If you run a background check, use a separate page for the disclosure and wait a few days between sending the report and sending a rejection. ☐ If a record shows up, write three paragraphs: what the offense was, how long ago, and why it matters for this job — then ask the candidate to respond before deciding. ☐ Let the new hire pick their own verification documents. ☐ Keep the file.

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