When conducting background checks or drug screening, the Fair Credit Reporting Act (FCRA) dictates that employers obtain applicant consent and authorization. The form is ensure the applicant has been clearly notified and given permission for the employer to obtain background screening information. A recent court case reveals that employers are still trying to get around the strict regulations for this form. Far too many large organizations are being taken to court over the mishandling applicant consent.
As a quick reference for employers, here are the do's and don't's of applicant consent to a background check.
Do: Read the FCRA Regulation about Consent
The consent form, referred to as "Disclosure and Authorization" in Section 604(b)(2) of the FCRA provides that employers may not:
"procure a consumer report... for employment purposes with respect to any consumer, unless
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured…in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii)the consumer has authorized in writing…the procurement of the report by that person."
Don't: Gamble with the possibility of litigation for not being compliant.
Do: Use FCRA-required language
The applicant consent and disclosure form must include FCRA-required language only. Employers may ask for identifying information such as name, address, date of birth and social security number that would be required to run a background check. Include which background screens will be obtained and inform applicants that the information may be used for employment purposes. Some states also include obligatory information such as a check box indicating if the applicant would like a copy of their report.
Don't: Include extraneous or other information that would distract from the form's purpose.
Download a Sample Background Check Consent Form
Do: Ensure the Consent Form is a Standalone Document
According to the FCRA, this written consent form should be "clear and conspicuous". This means that the document should be its own separate page if using paper or, if electronic, the form must be isolated from other documents in the application. Applicants must be aware of and understand the form and its importance.
Don't: Bury the consent form in the application, attempt to get consent with a checkbox on the application, or add the authorization form to another area of the applicant documentation.
Do: Include the FCRA Summary of Rights
Applicants must also be aware of consumer protections and rights under the FCRA. A summary of their rights, a document available directly from the FTC, informs applicants of these things and more:
- They must be told if the information found in the reports is being held against them.
- They have a right to know what's in the reports.
- They have a right to know their credit score.
- They have a right to dispute inaccurate information found in the report.
- Consumer reporting agencies must correct the inaccurate information.
Don't: Leave out any information that could lead to applicant questions about your hiring process later.
Do: Follow these FCRA rules to the letter.
Many employers will attempt to minimize forms or paperwork buy skirting by some of these regulations. The regulation is very clear on what should and shouldn't be included on the document.
Don't: Add a liability waiver in the disclosure and authorization document.
In the 2012 case of Singleton v. Domino's Pizza, LLC and the 2017 case of Syed v. M-I, LLC, the disclosure forms followed all other rules but also included a liability waiver to release the employer and/or its agents from liability for violations of the FCRA. Because so many employers have been brought to court for FCRA violations, it is no surprise that attempts would be made to release themselves from liability. Ironically, in either case, this liability waiver is not compliant.
Is it time to revisit your hiring process or applicant forms?