Background Check Consent Requirements

Background checks are valuable for employers, but understanding the legal landscape is vital. A complex set of regulations exists at local, state, and federal levels, with federal laws affecting all employers. A fundamental aspect of compliance involves obtaining applicant consent. Understanding the background check consent requirements is essential.

This article examines the relationship between the background check and informed consent, why this is necessary, and how to obtain it correctly. Before ordering a background check, you must always complete this process—proceeding with the vetting process without consent is illegal. Let’s begin by exploring the reasons.

Why Does the Law Require You to Obtain Consent?

Before the introduction of the Fair Credit Reporting Act (FCRA), consumers and job applicants faced a challenging landscape. Employers and others could obtain a range of information about an individual to support their hiring decision. This information was not guaranteed to be true, accurate, or even related to the correct individual. Applicants were often left in the dark or even uninformed of the process. If denials occurred, there was no procedure for disputing potentially outdated or inaccurate information.

Today, the law recognizes that background checks involve considerable sensitive, personal information that can significantly impact the availability of jobs or housing. Therefore, the FCRA exists to create boundaries in the process, including the informed consent requirement.

Under this requirement, the law demands that employers disclose to applicants their intent to use consumer reports (background checks) for hiring decisions. The disclosure outlines an individual’s rights and explains what information an employer will collect for consideration. It also provides clarity for applicants regarding permissions they grant to the employer during the hiring process.

This disclosure also explains the steps ahead and their future right to dispute information during an adverse action process. The law further requires that employers receive a signed consent form from the applicant.

How Do You Obtain an Applicant’s Informed Consent?

To obtain the applicant’s permission, make the required disclosures outlined by the FCRA. The intention to inspect their background must be separate from the main job application. It cannot include any extraneous or unrelated materials. You may consolidate the disclosure and the consent statement into one form. However, you cannot use this form to obtain consent for anything except acquiring consumer reports. The law is very strict about this standalone disclosure demand. If you need consent from candidates for other things, provide those forms at another time.

There are many examples of FCRA-compliant consent authorization forms online. You may also wish to consult an employment attorney to create or review forms for your organization. The process itself is simple; most applicants know they will need to submit to a background check and thus will expect the form. Make sure the form is both signed and dated. You can obtain this signature in person, on pen and paper, or use a secure digital signature system for electronic systems.

You Must Obtain Consent for the Screening Process

Can an employer conduct a background check without consent? Under no circumstances, therefore, you may wish to gather consent from an applicant as soon as possible. Remember the standalone disclosure requirements. You should not obtain consent by bundling the forms into your application packet. Instead, you should have a step-by-step process.

For many employers, that means selecting an applicant for an interview first. In ban the box jurisdictions, that’s a matter of law. Only obtain consent and plan to screen applicants potentially suitable for your position. After all, why order reports on an applicant you don’t intend to employ based on apparent unsuitability? Once you decide an applicant may be ideal to join your company, you can invite them to engage in the background check process.

As a standard part of the hiring process, applicants may not have many questions about the background check disclosures. However, strive to make the forms readable and aligned with statutory requirements. Separately, advise applicants whom to contact in your business with additional questions or concerns. A simple point of contact with HR can help you avoid issues and ensure a better candidate experience.

The Benefit of a Thorough Consent-Gathering Procedure

A streamlined procedure for consent gathering creates peace of mind for employers. Compliance is the primary benefit here. Knowing your procedure is ironclad and legally sound negates concern about battling FCRA-inspired lawsuits. You can engage with the results of the background check process instead of worrying about breaking the law. Keep your documented consent with an applicant’s file for up to five years after you obtain a background check.

Streamline Your Hiring Process With Professional Help

Meeting compliance requirements is critical throughout the background check process. These steps aren’t something you can skip on the way to obtaining the reports you’ll use to evaluate an applicant. However, following the correct procedure, every time is challenging at scale, at higher hiring volumes, and when manual work dominates the process. Such an approach can create the risk of gaps developing and invite unnecessary mistakes. Those errors could mean non-compliance—and if a savvy applicant notices, it could lead to FCRA-related lawsuits.

Strict controls and good training can prevent mistakes. However, support from your consumer reporting agency can also simplify compliance. At backgroundchecks.com, we provide several supports to our customers with legitimate compliance. For example, we offer a range of sample forms you may use to develop your standalone disclosures. These templates remove guesswork around what language to use while meeting your FCRA requirements.

Our applicant self-entry option also contains compliance support. In this method, you invite applicants via email to supply their information and initiate the vetting process via our service. We ask your applicants if they have already received the necessary FCRA disclosures. If not, we display this information in a compliant manner for the applicant to acknowledge. We also gather a binding electronic signature on the consent form.

Applicants deserve to understand the background check process and their rights under the FCRA. Companies must develop strong compliance controls and ensure they respect applicant rights. Once you know what’s involved, providing disclosure and gathering consent is ultimately straightforward. Review your procedures and explore whether there are better ways for you to comply with the FCRA.