As an end-user of background reports, Employers are assigned numerous responsibilities, including providing and procuring certain disclosures and authorizations to and from consumers.
To order an employment background report from a Consumer Reporting Agency (CRA) such as Crimcheck, an employer must certify that it has successfully complied with all duties as required by the Fair Credit Reporting Act (FCRA). These certifications describe a multitude of responsibilities delegated solely to end users of employment background reports, including:
- obtaining authorization from the consumer to run the report;
- assurance that the report will not be used to violate any equal employment laws; and
- that the consumer will be provided with a copy of the summary of consumer’s rights under the FCRA. (FTC Staff Report, July 2011, p. 51)
The first of these responsibilities, and often a focus of litigation, is the employer’s duty to provide and obtain proper disclosure and authorization forms. As an employer or end user of employment background reports, it’s important to understand what is federally required to lower exposure to legal risks and ensure a smooth hiring process.
What is a Disclosure?
A disclosure is a notice to the applicant from the employer, informing the applicant that a background report may be run on him or her.
What is Background Check Authorization?
An authorization is obtained when the applicant grants the employer permission to run the background report on him or her.
Before an employer may obtain a background report, it must provide the disclosure and receive the authorization for the background check from the applicant. While the process is simple, the importance of proper form usage is often overlooked, leading to outdated and legally risky disclosure and background check authorization forms.
What is federally required?
In accordance with 15 U.S.C. § 1681b(b)(2)(A) of the FCRA, when an employer wants to obtain a background report on an applicant for employment purposes, the disclosure must be:
- Clear and conspicuous;
- In writing; and
- In a document that consists solely of the disclosure.
The authorization from the applicant must be in writing.
What else can be on the disclosure or authorization?
By watching litigation trends and settlement agreements, the best practice is ultimately keeping the process simple and straightforward. A disclosure should only include the disclosure, and an authorization should only include the authorization.
In Adrian Singleton, et al v. Domino’s Pizza, LLC, Domino’s Pizza, LLC paid $2.5 million to settle a class action lawsuit for its alleged FCRA violations after consumers claimed the company include a limitation of liability in the disclosure form, and additionally failed to provide copies of a summary of consumer’s rights under the FCRA during the adverse action process.
In a similar settlement, Brown et al. v. Lowe’s Companies, Inc., et al, Lowe’s had to pay consumers after applicants claimed a liability waiver was included in the disclosure and authorization forms.
Adding additional language that could distract the consumer, such as a waiver or including the disclosure on an employment application, will leave employers open for legal complications. Keep the disclosure and authorization forms simple, straightforward, and clear to consumers that the document is just that: a disclosure and authorization form.
How can Crimcheck help?
On our online proprietary platform, clients of Crimcheck can find our customizable sample disclosure and authorization form templates. While Crimcheck makes a great effort to keep all sample documents up to date with the various legal requirements, employers should consult with their legal counsel before using these complementary forms as it is the employer’s responsibility to ensure the forms are legally compliant.
The FCRA designates a lot of responsibilities to employers, so understanding the duties of as an employer is the first step to ensuring compliance and limiting exposure to risks.
This information is provided for informational purposes only. Crimcheck does not provide legal advice. Reader retains full responsibility for the use of the information contained herein. State law may vary.