Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, May 26, 2017

Will My Employment Law Claim Show Up In A Background Check?

I'm constantly asked about whether certain actions against employers for discrimination and other issues will show up in a background check. Other than a lawsuit, most probably will not. And now, even with a lawsuit, a court just allowed a plaintiff to go forward with a sex discrimination suit as "Jane Doe" so her reputation would not be damaged.

So, what kinds of actions will and won't show up on a background check? Here are my thoughts:

Severance agreements: Negotiating a severance agreement should be confidential. While most employers put in the agreement that employees will keep the agreement confidential, I ask that this be made mutual. I don't want employers getting cut and saying something like, "I need to look at the agreement to see what I'm allowed to say." One of the things you can negotiate is what will be said to potential employers in references.

EEOC: While EEOC is a government agency, EEOC charges of discrimination are not generally discoverable. Only the employer and employee are entitled to copies of the charge and responses. While some employers and employees wrongly say that they are in a lawsuit once the EEOC filing is done, this is incorrect. EEOC is not a lawsuit. It is not public record. If EEOC files a lawsuit on your behalf (don't hold your breath) then the suit is public record.

NLRB: The NLRB investigation process is confidential. Once it goes to an administrative law judge and/or court, it becomes public record.

Internal complaint to HR: HR is supposed to keep your complaint of discrimination, whistleblower retaliation or other legal issues confidential. That being said, they also have to investigate. So people who work with you will likely know you complained. Filing an internal complaint is not a public record (unless you work for government, and then sometimes it is). So your employer could retaliate against you by telling potential employers that you complained, but that would be illegal retaliation if you complained about something that is illegal like discrimination. However, if you complained about your boss being unprofessional, incompetent or a bully, your complaint is not legally protected against retaliation.

Lawsuit: If you file a lawsuit, it is public record. It will almost certainly turn up in a background check. However, the lawsuit I mentioned above may start a trend of Jane and John Doe filings to keep this from happening. For the most part, that may be effective. However, if a potential employer dug deeper into a litigation file, it would likely be able to uncover your name in deposition notices and other filings. An ordinary name search background check would be thwarted by a Doe filing. So if you're thinking about suing an employer or former employer, a Doe filing is something to think about.


  1. A very good post, as usual.

    I would add a couple items from painful experience.

    1. Just because the severance agreement contains a confidentiality clause, does not mean it won't come back to haunt you in the future. For instance in litigation, it may be produced in response to discovery requests or a subpoena to past employers. So may demand letters sent by counsel.

    2. Even confidential severance agreements may be fair game in depositions. Don't assume it means you won't have to testify about it.

    1. Good points! Thanks for letting my readers know. I'm sorry to hear about your painful experience.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.