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Can an Employer Run a Background Check without Permission?

Posted by Ryan Howard on Fri, Mar 09, 2018

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Creating a safe and successful workplace culture is important to employers who run background checks. Screening every employee, however, can be costly and slow down the hiring process. Some hiring managers may decide to use a quick and cheap internet database search to look up information before considering a candidate. Not only could this practice reveal inaccurate information, the applicant must give written consent before employers can dig into their backgrounds.  

Can an Employer Run a Background Check without Permission? Let's take a closer look.

Can Employers Check Online or Social Media?

When seeking information on an applicant, hiring managers may be unable to resist the urge to use the internet. If the job seeker has any social media accounts or online information, especially if it's public, the employer may use the information to get a sense of the individual under consideration. Although the information is "out there", this is still considered a violation of the applicant's privacy. The hiring manager also runs the risk of making a decision based on false information. The social media posts, as an example, could be made by someone who stole an identity, cyber bullying, or someone with the same name as the applicant.

Why Does an Employer Need Permission to Run a Background Check?

The short answer, as mentioned previously, is privacy. The Fair Credit Reporting Act (FCRA) established rules to protect consumers from inaccurate information in their credit and consumer reports. The FCRA also dictates who can provide the information revealed in the reports, who can obtain the information, and the acceptable reasons for obtaining the report. Prior to the FCRA passage, these reports were filled with information about the individual's personal life, some of which wasn't true. The FCRA allows consumers to see and dispute information found in the reports that were being used to determine whether they were able to get loans or gain employment. 

Free: Online Applicant Consent Portal

How Does an Employer Get Permission to Run a Background Check?

The FCRA specifies that a written consent form should be "clear and conspicuous". Employers should ensure a form that is asking for consent and authorization to run a background check is separate from the application. The language used on the form should also state which identifying information is required, that a background check will be run, which screens will be obtained, and that the information in the background check consumer reports will be used in the employment decision. Applicants must also be made aware that they can receive a copy of their report. A best practice for background checks is to request screening after a job offer has been extended to the applicant.

See also: The Do's and Don't's of Employment Applicant Consent

What If the Applicant Fails the Background Check?

If the background check report includes information such as criminal convictions, it does not automatically mean that the applicant should not be offered the job. Before making a decision based on the results of the screening, these steps should be followed:

  • Verification - Make sure the report actually belongs to the candidate. Your background screening company should have processes in place to ensure the veracity and quality of the report.
  • Check your hiring policy - A background check decision matrix will create consistent hiring policies with regards to criminal records and certain job requirements. 
  • Pre-adverse action - The applicant should be informed that the background check revealed information that may prompt a no-hire decision. They will receive a copy of the report, a summary of their FCRA rights, and a reasonable amount of time to dispute the results.
  • Dispute and Decision - The applicant will dispute the results of the report, or not, to also inform if the data is correct. If the results are correct, the decision is made to withdraw the offer of employment. If the results are inaccurate, the decison may be made to continue the hiring and onboarding process.
  • Adverse action - The adverse action notice (a free sample letter is found in our HR templates) is then sent to the applicant stating the job offer is withdraw due to the results of the background check. 

Employment background checks don't have to slow down the hiring process or cost too much. Working with a professional consumer reporting agency (also called a background check provider) will help keep employers compliant with the FCRA, honor consumer privacy and have best practices for saving time and money.

Sample Background Check Policy Download the Template 


Topics: Employment Background Screening, FCRA Compliance, Hiring and Recruiting