Background checks are becoming increasingly common for many applications. Creditors, landlords, and employers frequently use this tool to verify the information and ensure that they select top applicants. Background checks can include a lot of information related to:
- Verifying identity
- Verifying the right to work legally
- Discovering criminal history and registration on any sex offender websites
- Verifying details of past employment and education
- Discovering any other discrepancies or red flags in a person’s past
- Checking one’s credit report
- Verifying a driving record
But before a criminal background check or a review of any of the above information can begin (excluding public information), applicant consent must be provided. Most states require this type of consent before a potential employer could legally move forward with the criminal background check.
And while performing a background check is common practice for many companies, it’s a good idea to review how to obtain adequate consent before running a criminal background check. Laws are frequently changing and evolving, so even companies with a long history of requiring a criminal background check should periodically review their process to ensure continued compliance.
If an applicant refuses to consent to a criminal background check, they can frequently be denied the right to advance in the employer’s hiring process. Under these circumstances, the employer would usually suffer no repercussions. Despite this, many people who wish to be considered for a position may still want to proceed with a background check. Before doing so, it’s a good idea for both the applicant and the employer to understand what consent looks like and when it is necessary.
When Consent is Required
Consent is required to legally obtain most types of information reviewed in an employer’s background check, including institutional records, military records, and employment records. Other information, such as driving records and major criminal convictions, may be part of the public record. In these cases, the employer would not be required to have formal consent from the applicant.
A criminal background check requires employers to obtain a signed authorization form in most states, allowing them to move forward with the check. Employers who work with a third-party agency to conduct background checks must also obtain formal consent first. A failure to do so would violate the Fair Credit Reporting Act. Written consent is also required for a credit report.
Since some information requires written consent and some do not (and most background checks contain some public record information and some private information elements), it’s generally always a good idea to obtain formal consent before beginning a criminal background check or reviewing any other background information.
Obtaining Consent for a Criminal Background Check
Employers who conduct a criminal background check must comply with the Fair Credit Reporting Act. Before they acquire and use your information, they must certify to Consumer Reporting Agencies that they have completed or will complete the following actions:
- Advised the applicant that a report will be requested.
- Obtained written consent for the background check in a standalone document.
- Provided a copy of the background report and a summary of the applicant’s rights under the Fair Credit Reporting Act at least five days before making a hiring decision.
A failure to complete any of these actions represents a violation of the Fair Credit Reporting Act – and could put the employer in legal peril.
Most crucially, employers who conduct criminal background checks must obtain written consent for the check in a standalone document. If the disclaimer is hidden among other text or embedded in employment consent forms, it is not sufficient. The rationale behind this is that anyone who consents to the criminal background check should have a full understanding of the scope of the information and their rights under the Fair Credit Reporting Act.
In addition to the Fair Credit Reporting Act requirements, state laws may impact how consent must be obtained. Employers should be familiar with these requirements before beginning any criminal background check.
Illegal Background Checks
A background check conducted without the applicant’s explicit, written authorization in a standalone document would be considered an illegal background check. The employer would violate the Fair Credit Reporting Act laws that protect consumer rights from unlawful background checks. The applicant would have legal standing to bring a lawsuit against the employer in either a state or federal court. Legal remedies often include actual damages, punitive damages, attorneys’ fees, and other costs – whether the violation was intentional or not. Working with a reputable background check agency can limit employer liability as these companies often understand consent thoroughly and can ensure all required documentation is obtained.