Background checks are used for many different reasons. For example, employers and landlords often use criminal background checks to keep their environments safe for other employees and tenants. And while running a background check on someone is becoming more common, there are legal protections in place to preserve the job candidate or prospective tenant’s rights to privacy.
The Consent Process for Criminal Background Checks
One of the most significant requirements while conducting a criminal background is securing appropriate authorization from the individual before any information is researched. The Fair Credit Reporting Act was passed in 1970 and includes many regulations that protect accuracy, privacy, and fairness when looking at information.
Among the requirements is one that mandates that any organization conducting a background check must obtain written permission from the individual before moving forward with the screening process. This authorization covers all aspects of most background checks, including criminal history, past employment, and education verification, and reviewing their credit or driving records.
In addition to obtaining written authorization, The Fair Credit Reporting Act also requires that the company must provide written documentation alerting the individual that the background check will be conducted. The company must also inform potential job candidates that the results may impact their eligibility if the background check is conducted as part of the pre-employment screening process.
In addition to the Fair Credit Reporting Act, some states or local jurisdictions may have additional laws related to a criminal background check authorization. Since laws change frequently, organizations that use background checks must continuously brush up on their knowledge of applicable laws to ensure compliance.
Individuals who may have a background check conducted on them should also understand their rights. Everyone has the right to refuse consent for a background check. However, the employer or tenant may be legally justified in deciding not to move forward with their employment or rental application.
The Implications of Providing Consent for a Criminal Background Check
Any individual going through a criminal background check – no matter the purposes – should also understand what providing consent means. It allows the potential employer, landlord, or any other organization or individual that has secured consent to look at their criminal history. A criminal background check includes a review of past criminal convictions and probations. Details on the nature of the crime and its relationship to the employer or landlord may be revealed. It will also display the time since the conviction, the number of convictions, and in some instances, a determination on whether the candidate would pose a risk to the business, its employees, tenants, customers, or vendors.
The Fair Credit Reporting Act does not put a limit on how far back a criminal background check may extend into an individual’s past, which means that even convictions that occurred decades ago may be reported and reviewed without federal legal ramifications. And while no federal regulation contains a time limit, many states have opted to limit the scope of criminal background checks. In most instances, these states have opted to put a seven-year limit in place. States with this requirement include California, Hawaii, Kansas, Kentucky, Maryland, Massachusetts, Montana, Nevada, New York, Texas, and Washington, among others.
Anyone who provides consent for a criminal background check should understand what information will be available. And those who conduct criminal background checks should understand what information they are legally allowed to access and use when making hiring or tenancy decisions.
Documenting Authorization for a Criminal Background Check
Organizations that conduct criminal background checks must ensure they have the appropriate documentation to prove that the consent was obtained legally. This documentation includes:
- Proof that they have advised the applicant a criminal background check has been requested.
- Written consent from the individual authorizing a criminal background check.
Any background check conducted without the proper authorization would be considered illegal and would violate the Fair Credit Reporting Act. This act can land a company in legal trouble quickly.
The team at USAFact has decades of experience and knowledge related to legally conducting criminal background checks and obtaining the proper authorization from individuals. To learn more about how we can enhance your criminal background check process, contact USAFact today!