Background Checks, Drug Screens and Driving Records in Construction Hiring

Most construction employers screen new hires in some way. A superintendent may drive a company truck. An equipment operator may need a commercial driver's license. A project manager may have access to owner sites, schools or hospitals that set their own screening rules. Background checks, drug tests and driving records are part of the job.

They are also an area where well-meaning employers get into trouble, usually not because they screened, but because of how they did it: a consent form buried in the application, an offer pulled without the right notice, or a blanket "no records" rule. This guide walks through what federal law requires at each step.

This post is general information for employers, not legal advice. Federal rules are summarized as of October 2026, and state and local laws often add requirements. Check with employment counsel and the agencies named below before you change your process.

Background checks from a screening company: the FCRA

When you hire an outside company to run a criminal history, employment verification, education check or driving record, the report is usually a consumer report under the federal Fair Credit Reporting Act (FCRA), and the screening company is a consumer reporting agency. The Federal Trade Commission's guide for employers, Using Consumer Reports: What Employers Need to Know, lays out the steps.

Before you order the report

• Give a written disclosure that you may get a consumer report for employment purposes. The FTC says it must be a standalone document, not part of the employment application. You can add a little extra information only if it doesn't confuse or distract from the notice.
• Get written authorization from the candidate. The authorization can be on the same page as the disclosure. If you want it to cover checks during employment as well, say so clearly.
• Certify to the screening company that you gave the notice, got permission, followed the FCRA, and will not misuse the information in violation of equal opportunity laws.

The most common mistake in this step is stuffing the disclosure with liability waivers or state notices. Keep it short and on its own.

Before you act on what the report says

If something in the report may lead you not to hire, to withdraw an offer, or to take other adverse action, the FCRA requires a pre-adverse action notice first. The FTC says it must include:

• a copy of the consumer report you relied on, and
• a copy of A Summary of Your Rights Under the Fair Credit Reporting Act.

The point is to give the candidate a chance to review the report and tell you if it's wrong or incomplete. Records get mixed up, and people with common names are especially exposed. Build a real waiting period into your process before you make the final decision.

After you decide

If you go ahead with the adverse action, send an adverse action notice. It can be oral, written or electronic, and according to the FTC it must include the screening company's name, address and phone number; a statement that the screening company didn't make the decision and can't explain it; and notice of the candidate's right to dispute the information and to get another free report from the company if they ask within 60 days.

Keeping and disposing of reports

Store reports securely and limit who sees them. When you dispose of them, the FTC says paper should be burned, shredded or pulverized and electronic files destroyed so they can't be read or reconstructed.

Criminal records: the EEOC's guidance

The FCRA governs the process. Title VII of the Civil Rights Act governs how you use criminal history in the decision. The U.S. Equal Employment Opportunity Commission's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (April 2012) is the main reference.

Key points from that guidance:

• Arrests are not convictions. The EEOC says an arrest alone doesn't prove someone did anything, so excluding a candidate because of an arrest record by itself is not job related. You may consider the conduct behind an arrest if that conduct makes the person unfit for the role.
• Screens should be tied to the job. The guidance uses three factors from a federal court case, Green v. Missouri Pacific Railroad: the nature and gravity of the offense, the time since the offense or sentence, and the nature of the job.
• Individualized assessment helps. The EEOC describes telling the person they may be excluded, giving them a chance to explain why the exclusion shouldn't apply, and considering what they say: the circumstances, their age at the time, work history since, rehabilitation and references.
• Federal requirements are a defense. If a federal law or regulation requires you to exclude certain people from a role, following that rule is a defense, but anything you add beyond it is still judged under Title VII.

In practice, that means a blanket "no felonies" policy is risky. A policy that looks at specific offenses relevant to specific roles, and looks back over a defined period, is much easier to defend. A conviction for a driving offense may matter for an operator who drives company equipment. It may matter less for an estimator who works in the office.

Many states and cities also have "ban the box" or fair-chance hiring laws that limit when you can ask about criminal history, often not until after a conditional offer. These differ widely, so check the rules where the job is located.

Drug and alcohol testing

For most private construction jobs, federal law does not require a pre-employment drug test, and state law sets the rules: when you can test, what notice you must give, how cannabis is treated, and what happens after a positive result. Some states also tie workers' compensation discounts to a drug-free workplace program. Your state labor agency is the place to start.

The big exception is commercial drivers. If a role requires a CDL and involves driving a commercial motor vehicle, the U.S. Department of Transportation's rules apply:

• Pre-employment testing. Federal Motor Carrier Safety Administration (FMCSA) rules in 49 CFR Part 382 require a negative pre-employment drug test before a driver performs safety-sensitive functions, using the testing procedures in 49 CFR Part 40.
• The Clearinghouse. Under 49 CFR 382.701, an employer may not let a driver perform safety-sensitive functions without first running a pre-employment full query of the FMCSA Drug and Alcohol Clearinghouse. A full query requires the driver's specific consent.
• Cannabis. The DOT's Office of Drug and Alcohol Policy and Compliance has said that state marijuana laws don't change DOT testing. A driver covered by DOT rules can't use a state medical or recreational marijuana law to excuse a positive test.

Keep DOT testing and any non-DOT company testing separate.

Driving records

If employees drive for work, a motor vehicle record (MVR) check is often the most relevant screen you run. Two rules commonly apply:

• FCRA. If you get the MVR through a screening company, it is a consumer report, and the disclosure, authorization and adverse action steps above all apply.
• FMCSA, for CDL drivers. Under 49 CFR 391.23, motor carriers must ask each state where a new driver held a license in the past three years for the driver's record, within 30 days of hire. Driver qualification files have their own retention rules.

A simple, defensible screening process

• Decide in advance which screens each role needs and why, and write it down.
• Use a standalone FCRA disclosure and a separate authorization.
• Wait until after a conditional offer to run criminal history, where state or local law requires it, and consider doing so everywhere.
• Look at offenses that relate to the job, over a set look-back period, rather than any record at all.
• Send the pre-adverse action notice, wait, consider what the candidate says, and then decide.
• Keep DOT and non-DOT testing programs separate.
• Store reports securely and limit access.

A clear process protects candidates from errors and protects your company from claims.

Related reading

For how screening fits into the wider search, see how a direct-hire search works. If you're hiring field leadership, our guide on how to hire a construction superintendent covers scope, sourcing and interviewing. For the roles we cover in heavy civil and infrastructure work, see civil construction recruiting.

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