It might seem like a no-brainer these days that employers are mandated by the Fair Credit Reporting Act (FCRA) to obtain an applicant’s written consent to conduct an employment background check. And by and large we find that most employers are aware of this. But have you taken a look at your release lately and wondered if the form that was created for you 10 years ago is still working for your organization?
Defining the Scope
The applicant release is designed to notify your candidate that you and, or your background screening provider will be performing a background check to determine if they are eligible for hire. The release should include the scope of the search. Most companies opt for a more generic scope, while others will specifically detail exactly what will be searched. An example of a generic scope would be the following:
You may be the subject of a “consumer report” and/or an “investigative consumer report” which may include information about your character, general reputation, personal characteristics, driving record, and/or mode of living, and which can involve personal interviews with sources such as your current and past employers, friends, or associates.
Now, upon consent you as the employer may not choose to exercise your right to request all of the information detailed above, but the fact that you have included it allows you to do so if you deem it appropriate or germane to the candidate.
Other companies choose to include specific language about what will be checked which is fine, however unless they modify the language, the scope of their search should never include other information.
What if I want to Re-Screen the Candidate or Conduct Another Check Throughout Their Employment?
If you want to avail yourself of this option, and most companies do, you must include it in the applicant release. Otherwise, you’ll have to get a new consent form each time you want to run a background check. This can be pretty awkward with existing employees, particularly if you want to conduct the check because you have reason to believe there might be some adverse information out there. An example of language that allows for this is below. Once you have the authorization signed, just rinse, lather and repeat.
These reports may be obtained at any time after receipt of your authorization and, if you are hired, throughout your employment.
Notifying Applicants of Their Rights
Of course protecting ourselves by protecting our applicants is in everyone’s best interest. A good release will ask the candidate to acknowledge that they have received a notice that a background check will be conducted (aka the release you are asking them to sign). And if you plan to utilize employment and, or education verifications and, or reference interviews (these services are part of what is referred to as an “Investigative Consumer Report”), you should also provide them with a copy of a document called “A Summary of Your Rights Under the FCRA” and have them acknowledge receipt as part of your release. Even if you do not choose to conduct an Investigative Consumer Report, it might make sense to include the language and give them the notice, just in case your policies ever change. Again, this will save you from having to obtain a new release if you choose to utilize these services at a later date and time.
Does My Release Comply with Individual State Laws?
True, the FCRA is the federal law that governs the use of employment background checks and in almost all cases, it is the prevailing law that defines a consumer’s rights. However, when it comes to applicant releases there are some state laws that supersede the FCRA. The following states mandate that you notify the consumer of these specific rights:
- New York- You must inform the applicant that they have a right to inspect and receive a copy of their investigative consumer report by contacting the screening company directly.
- Minnesota and Oklahoma- You must notify the candidate of their right to request a copy of their consumer report and allow them to do so on the applicant release document.
- California- See requirements for Minnesota and Oklahoma. Plus, you must give the applicant “Notice Regarding Background Investigation Pursuant to California Law” (see page four of sample release) and have them acknowledge that they have received it.
That begs the question, “Do I have to have separate applicant releases for each of these states?” The answer is yes and no. First, you can consolidate all of these notices in one nice and neat release form. If for some reason you do not want to do this, then yes, you would have to create separate release documents for candidates in these states. The benefit of having one seems fairly obvious, plus it takes the chance of having the wrong release executed out of the equation.
Just A Few More Things:
- The applicant release should never be a part of the job application. It can be presented at the same time, but must be its own separate document.
- Many wonder if it is acceptable and, or legal to ask for the candidate’s date of birth on the applicant release. The answer is yes. You will need that information in order to conduct a complete and accurate search.
- This release should be kept on file for the duration of an employee’s tenure with the company. It is generally recommended that employers should keep the release on file for 5 years following the employee’s termination. If the individual is not hired, the release should be kept on file for a minimum of two or up to 5 years.
As you can see, there is a lot of information to weigh in determining if your company’s applicant release needs updating. These are all good starting points for you to consider as you build your authorization, but above all else you should work with your legal counsel to determine the final product.
And in the spirit of compliance, I have to include the following language which proves that I am not a lawyer; I just play one on TV.
EmployeeScreenIQ is not providing legal advice or counsel and nothing provided on this website or otherwise by EmployeeScreenIQ should be deemed as legal guidance or advice. Users are solely responsible for complying with all local, state, and federal laws relating to the use of any information provided on this website and any information products provided by EmployeeScreenIQ. Users should consult with their own legal counsel if they have questions regarding their legal responsibilities or any information provided by EmployeeScreenIQ.