The 7 Background Screening Laws You Need to Know in 2026

Background checks aren’t just a box to tick; they’re a critical part of a smart hiring strategy. But the way you use them is shaped by a fast-changing patchwork of laws that can impact whom you hire, when you screen, and what you can consider.

In 2026, seven types of background screening laws are especially important for employers to understand:

These regulations don’t just affect whether you can run certain checks; they shape how background screening is able to support your overall hiring strategy, from reducing risk and bias to speeding time-to-hire and protecting your brand.

Employment eligibility verification has become one of the more treacherous compliance areas of 2026, with employers caught between tightening federal enforcement and a splintering patchwork of state rules.

For many hiring managers, verifications likely seem relatively straightforward. Form I-9 is the federal employment eligibility verification form used to confirm a new hire’s identity and authorization to work in the United States. Employees complete the first section of the form and show their employer the appropriate identity and authorization documents, such as a passport. The employer reviews the documents, completes the second section of the form, and stores it. When used, the historically voluntary E-Verify program compares the information on the employee’s I-9 form to data from the Social Security Administration (SSA) and the Department of Homeland Security (DHS) to electronically confirm the employee’s information.

As of March 2026, however, what was mostly a tickbox compliance task has become a much more likely source of liability. Under updated ICE inspection guidance, a number of I-9 errors that were previously treated as technical and correctable during an audit are now considered substantive violations subject to immediate fines. These include missing key information in Sections 1 and 2, incomplete preparer or translator details, certain remote verification errors, and deficiencies in electronic I-9 systems.

At the same time, states are increasingly stepping in with their own requirements—complicating the employment eligibility verification landscape even further.

Illinois, for example, isn't mandating that employers use E-Verify the way some states have. Instead, it’s saying that if you do use it and receive an inconclusive result, you’re required to conduct additional due diligence before taking action. Ohio, on the other hand, is taking a more targeted stance. Instead of mandating the use of E-Verify for all private sector positions, as some states have, it’s requiring its use in certain sectors like construction and requiring employers to keep records proving compliance. Unlike Illinois, Ohio's mandate includes no safeguards for employees when E-Verify returns inconclusive results.

The divide reflects broader tensions and priorities around immigration enforcement and is perhaps a signal that more legislation could be on the way.

In March 2026, ICE updated Form I-9 to significantly narrow which errors qualify as technical violations that may be corrected during an audit. A range of omissions that were previously fixable—such as missing employee date of birth, missing work authorization expiration date, incomplete document information in Section 2, missing first day of employment, certain remote verification errors, and some electronic I-9 system deficiencies—are now treated as substantive violations that can trigger immediate fines. Employers should consider conducting internal I-9 audits and updating onboarding and recordkeeping practices to reduce compliance risk under the stricter enforcement framework. Learn more.

Ohio’s new E-Verify Workforce Integrity Act, effective March 19, 2026, will require nonresidential construction contractors, subcontractors, and labor brokers to use E-Verify to confirm new hires’ identities and work authorization on covered projects. Employers must retain E-Verify records for the longer of three years from hire or one year after termination. The Ohio Attorney General will enforce the law, with potential penalties including civil fines, disqualification from state contracts, and suspension or revocation of business licenses, making it critical for affected employers to review and update hiring and onboarding practices. Learn more.

Effective December 12, 2025, amendments to the Illinois Right to Privacy in the Workplace Act (IRPWA) limit how employers can respond to E-Verify Tentative Nonconfirmation notices and other government or third‑party discrepancy alerts. Illinois employers may no longer base adverse action solely on these notices and must inform affected workers within five business days, sharing specific information required by the law. The amendments also expand enforcement tools for state regulators and give employees and applicants a direct path to sue over violations, so Illinois employers should closely review and adjust their E‑Verify and discrepancy‑response procedures. Learn more.

Ban the Box laws initially referred to the box on a job application where candidates indicate whether they have an arrest or conviction history. The Ban the Box movement has since evolved into a variety of state, city, and county laws that may also govern when employers are permitted to conduct a background check during the hiring process. While we anticipate a decrease in new Ban the Box laws in the years ahead, reconsideration and reinterpretation of existing laws is likely to continue.

The Third Circuit Court of Appeals has clarified that Pennsylvania’s Criminal History Record Information Act (CHRIA) applies equally to criminal history that candidates self-disclose and to information obtained from background check providers or other third parties. As a result, this broadens the interpretation of the existing law. This means employers hiring in Pennsylvania must evaluate self-disclosed criminal history only for its relevance to the specific role and must provide written notice if they make an adverse hiring decision based on that information. Learn more.

Philadelphia has updated FCRSSO, effective January 6, 2026, shortening the misdemeanor lookback period to four years, barring consideration of summary offenses, clarifying the 10-business-day adverse action window, and expanding individualized assessment and notice requirements, including an FCRSSO Summary of Rights. The amendments also add a strong anti-retaliation provision, creating a rebuttable presumption of unlawful retaliation when adverse action follows a candidate’s exercise of their rights within 90 days. Philadelphia employers should update hiring policies, adverse action workflows, documentation, and candidate notices now to align with the revised FCRSSO and mitigate compliance and retaliation risks. Learn more.

The federal FCRA regulates the use of credit history information for employment purposes. Generally, it does not prohibit an employer from requesting a consumer’s credit information as part of a background check. That said, the common advice has been that employers should not perform a pre-employment credit check unless a consumer’s credit history is job-relevant, such as for jobs involving handling money or high-security situations. Some states and cities, however, have made this no longer a matter of good advice but an outright ban with limited exceptions. We’ve seen this in places such as New York City and Illinois. And now, New York State joins the fold.

Effective April 18, 2026, New York will bar most employers from requesting or using credit history for hiring or other job decisions under an amendment to the New York Fair Credit Reporting Act (NYFCRA). The rule covers both applicants and current employees, with only limited exceptions where credit checks are explicitly required by law, and treats violations as an unlawful discriminatory practice. New York employers should update their screening programs to remove credit checks unless they clearly fall within one of these statutory exceptions. Learn more.

Expungement is the process of removing or sealing a record from an individual's criminal history so it is no longer publicly accessible in most routine background checks. Traditionally, people have had to petition the court, pay fees, and navigate complex procedures to have their records expunged. In recent years, however, a growing number of states have enacted laws to automate record clearance, often using data sharing between courts and record repositories to identify and clear eligible cases without requiring individuals to apply. When these laws are comprehensive and cover a significant number of offense types over a broad time period, they’re often referred to as “Clean Slate” laws.

Currently, more than twenty states have implemented some form of Clean Slate or automatic record relief, requiring courts or agencies to clear certain eligible criminal records on a recurring basis, changing what may appear on background checks over time and making it more important for employers to understand which records are legally reportable or usable in hiring decisions.

In an effort to further protect candidates and employees from discrimination and wage inequality, many states and cities have passed laws prohibiting employers from inquiring about a candidate’s pay history or making hiring decisions based on a lack of prior wage information. These laws are designed to prevent historical underpayment from following workers from job to job and contributing to persistent gender- and race-based pay gaps.

In practice, they often restrict salary history questions on applications and in interviews and bar employers from relying on prior pay to set compensation. As more jurisdictions adopt salary history bans and related pay transparency measures, multi-state employers, in particular, need to standardize hiring practices and train recruiters to focus on skills, responsibilities, and market data rather than on a candidate’s past earnings.

While employers across the US must follow federal regulations, drug testing requirements are largely shaped at the state and local level, and they can differ significantly by employer type (public or private), industry, and even job duties. Some laws spell out which positions must be tested (such as safety‑sensitive roles or positions covered by DOT rules), while others regulate how testing is carried out. Common provisions include requiring written notice or a clear, published policy before testing; limiting testing to specific points in the hiring process (for example, only after a conditional offer); mandating the use of certified laboratories or medical review officers; and setting rules for random, post‑accident, or reasonable‑suspicion testing.

In some jurisdictions, employers must also follow strict procedures for communicating results, maintaining confidentiality, and giving candidates or employees an opportunity to explain or contest a positive test result. For multi‑state employers, this patchwork often means tailoring drug testing policies by location and role to stay compliant while still supporting workplace safety.

As more states legalize cannabis for medical or recreational use, laws governing employment-related cannabis use and marijuana testing are evolving quickly, and often in ways that differ from traditional drug testing rules. Many jurisdictions now restrict employers from taking adverse action based solely on off-duty, off-premises cannabis use or on a positive test for non-impairing metabolites, especially when there is no evidence of on-the-job impairment.

Some state and local laws prohibit discrimination against qualified medical marijuana patients, require employers to consider reasonable accommodations, or limit pre-employment testing for cannabis except in safety-sensitive or federally regulated roles. Others set standards around the types of tests that may be used, when they can be administered, and how results must be handled or communicated.

For employers hiring across multiple states, this shifting landscape often requires rethinking zero-tolerance policies, updating drug testing panels and vendor instructions, and training HR and managers to distinguish between lawful off-duty use and conduct that legitimately impacts workplace safety or performance.

About the author

Brandon Konecny, Senior Privacy and International Compliance Counsel at Checkr, advises on product development and leads privacy, artificial intelligence, and international compliance efforts. He combines deep knowledge of law, risk management, and governance with a focus on practical, scalable implementation across jurisdictions.