An employer must follow Fair Credit Reporting Act guidelines when conducting background investigations through a third party. The FCRA requires that an employer must make certain disclosures and obtain a candidate’s authorization. Background screening reports are defined as “consumer reports” under the FCRA when they serve as a factor in determining a person’s eligibility for employment. An employer must provide the prospective employee with a clear and conspicuous written disclosure that a background screening report will be obtained and must include language specified by the FCRA. Additionally, the employer must obtain the candidate’s written authorization. It is permissible to include the disclosure and the request for the candidate’s authorization in one document. Here are some examples of content that should not be in this document:
· Do not include language that will release the employer or the background vendor from liability for conducting, obtaining, or using the background screening report.
· Do not include a certification by the prospective employee that all information in his or her job application is accurate.
· Delete any wording that purports to require the prospective employee to acknowledge that your hiring decisions are based on legitimate non-discriminatory reasons.
· Do not use overly broad authorizations that permit the release of information that the FCRA prohibits – for example, arrests that did not result in a conviction that occurred more than seven years ago.
· Adding state specific requirements, other acknowledgements or releases of liability beyond the scope of what the FCRA permits in this document may be prohibited.
The FCRA prohibits additional information beyond the scope of this Act that will make it more difficult for the prospective employee to understand the main purpose of the document. FCRA violations may result in significant penalties. If an employer has additional waivers, authorizations, information or disclosures, do not include these items in the FCRA disclosure and authorization document. This information must be included in a separate document. Is your company FCRA compliant? Always seek competent legal advice when developing a compliant FCRA program