Disclosure and authorization: gaining consent to run background checks

Many employers open themselves to risk by not properly disclosing that they will run a background check, or by failing to gain the candidate's authorization. This is true both for full-time employees and independent contractors. Avoid this risk by telling your candidates you intend to run a background check report on them and asking for permission.

Proper disclosure and authorization requires:

• A standalone disclosure (consisting only of the disclosure) informing the candidate that you will be running a background check. Non-standalone disclosures are an extremely common area of legal risk.
• State disclosures (if applicable). Some states, like California, require specific disclosures and formatting.
• An Authorization Form seeking consent from the candidate to run the background check.

If you use the Checkr-hosted application flow (set up by default), Checkr will help automate disclosure and authorization for you by providing sample disclosure notices and authorization language.

Here’s what the candidate will do in the Checkr-hosted flow:

1. Enter their personally identifiable information (PII) so that Checkr can run the background check.
   
   
   
   
2. Read and acknowledge A Summary of Your Rights Under the Fair Credit Reporting Act, which we include to help consumers understand their rights.
   
   
   
   
3. Read and acknowledge the Disclosure Regarding Background Investigation. This is what’s known as the sole disclosure and it must not have anything else added to it, including liability waivers, application effectiveness periods, disclaimers of accuracy, or any other extraneous information. The FCRA specifically requires that the disclosure be “clear and conspicuous” and consist “solely of the disclosure.”
   
   Your disclosure should look similar to the image below, otherwise you expose yourself to one of the most common areas of legal risk. If you add extraneous information to the disclosure, you may leave yourself vulnerable to a class action with a large class size, because every single candidate going through a background check will be exposed to your disclosure before proceeding.
   
   
   
   If the candidate or job location is in a state with its own disclosure requirements, based on the screening components and candidate’s ZIP code, Checkr will automatically provide the state-specific disclosure as a separate step.
   
   
   
   
4. Read and acknowledge the authorization for a background check. Included in this authorization is any state-specific language required by law. The candidate can choose to be emailed a copy of the report, then e-signs with their full name (which much match the name they entered earlier in the process).
   
   
   
   
5. Click Submit, and now the background check process begins. 

To recap, one of the more frequent areas of litigation around background checks involves the requirement to have a document that consists “solely” of the disclosure. You may be tempted to add to or modify your disclosures, but by doing so, you may be vulnerable to legal action from plaintiffs’ attorneys who file thousands of FCRA lawsuits each year.