The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Conducting background checks of prospective employees and volunteers can be vital to maintaining public safety and identifying potential risks. Even in situations where a municipality is not legally obligated to conduct such checks, it may determine that it is prudent to do so. In making such a determination, it is important to understand that not all background checks are equal.
Municipalities may opt to use a private third-party service to conduct employment background checks. These checks can include information concerning criminal convictions, credit history, civil court records, and more. However, when choosing to work with a third-party vendor, municipalities must ensure that its process and the background check itself complies with the requirements of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., which imposes specific notice and authorization obligations.
Municipalities can also choose to conduct their own background checks. This often involves speaking with references and reviewing criminal conviction information. RSA 106-B:14 I(c)(1) allows any person to obtain the New Hampshire public criminal history record information of another person. This type of search only produces conviction information for state-level offenses in New Hampshire.
Municipalities have the additional option, pursuant to RSA 41:9-b and RSA 28:10-c (for towns/cities and counties, respectively), to conduct not only the state records check, but also a fingerprint-based, federal criminal records check for any prospective employee or volunteer who will “work with or around children or elderly persons, enter the homes of citizens, or collect or manage money.” A federal criminal records check will provide some conviction information from jurisdictions across the country. However, it is important to note that the federal records search is not comprehensive and does not capture all convictions information. For instance, conviction information not associated with a fingerprint record is ineligible for inclusion in the federal Interstate Identification Index (III). Therefore, a federal record check may not include all NH state-level conviction information. Therefore, municipalities may choose to have both checks run simultaneously to avoid gaps in information.
Likewise, proof that an individual has successfully purchased a firearm from a federally licensed firearms dealer (FFL), obtained a state of New Hampshire pistol permit, or passed a National Instant Criminal Background Check System (NICS) check may not provide sufficient information for an employer to assess the suitability of a candidate. For instance, an individual convicted of misdemeanor sexual assault is permitted to possess a firearm under federal law and could successfully pass a NICS check. However, that same individual, because of that conviction, would be prohibited by RSA 632-A:10 from directly supervising minors or from working one-on-one with minors. Therefore, relying on a NICS check would not provide a municipality with sufficient information to assess whether a candidate is suitable for a role supervising teenage volunteers, as just one example.
Municipalities are required by law to conduct specific types of background checks for certain prospective employees or volunteers.
Examples of Mandatory Background Checks
1. Recreation Camp or Youth Skill Camps
RSA 170-E:56 requires any municipality operating a covered recreation center/camp or youth skills program to develop a background check policy that applies to any owner, employee, or volunteer who may be left alone with a child or children. At a minimum, the policy must ensure that no covered individual has a criminal conviction for an offense that involves “causing or threatening direct physical injury to any individual or; causing or threatening harm of any nature to any child or children.”
2. Law Enforcement Related Positions
By administrative rule, the NH Police Standards and Training Council requires municipalities to conduct comprehensive pre-employment background investigations before hiring a candidate into a police officer position. RSA 41:9-c requires employers to disclose employment information, upon written request endorsed by their current or former employees, to law enforcement agencies requesting employment information for candidates applying to become law enforcement officers. The responding agency is released from civil liability for releasing the information and may face civil penalties if it refuses to disclose requested information to the requesting law enforcement agency.
In addition, any employee, whether civilian or sworn law enforcement officer, with access to the State Police Online Telecommunication System (SPOTS) and the National Crime Information Center (NCIC) is required to pass a fingerprint-based, criminal history background check before access to SPOTS/NCIC is authorized by the New Hampshire State Police. Thereafter, further fingerprint-based criminal history background checks are required on a periodic basis to maintain ongoing SPOTS/NCIC access.
3. CDL-Required Positions
Municipalities generally have limited authority to conduct pre-employment drug and/or alcohol testing of candidates for employment. Drug and alcohol testing has been found by the U.S. Supreme Court to be a form of “search and seizure,” which is only permitted in a manner that is not “unreasonable”
under the Fourth Amendment. However, municipalities that require certain employees to hold a commercial driver’s license (“CDL”) must require applicants for, and employees in, those positions to submit to required drug and alcohol testing, including pre-employment drug testing, in accordance with the federal regulations. Additionally, municipalities are required to query the DOT’s CDL Drug and Alcohol Clearinghouse (“Clearinghouse”) before an employee/applicant engages in any safety sensitive function. The Clearinghouse is a database containing information relating to violations of the DOT’s drug and alcohol program for CDL holders. Municipalities are also required to query the Clearinghouse on an annual basis to ensure that current employees in CDL-required have not been reported for any drug or alcohol violations.
4. Individuals Involved in Provision of Medicare/Medicaid-Funded Services
Municipalities receiving payments from federally funded healthcare programs for the delivery of healthcare services, such as EMS, ambulance, or public health nursing, are prohibited from employing, or entering into contracts with, individuals or entities on the List of Excluded Individuals/Entities (LEIE) maintained by the U.S Department of Health and Human Services Office of Inspector General (OIG). For more information concerning the obligation to conduct LEIE checks on prospective and current employees, see “HR REPORT: What Municipal HR Professionals Need to Know About the U.S. Department of Health and Human Services Office of the Inspector General” available at: https://www.nhmunicipal.org/town-city-magazine/hr-report-what-municipal-hr-professionals-need-know-about-us-department-health
Municipalities are encouraged to reach out to counsel to develop and assess background check policies and practices for legal compliance.
Sarah Freeman is a member of Drummond Woodsum’s Labor and Employment Group. Her practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2025 Drummond Woodsum. These materials may not be reproduced without prior written permission.”