When you run a background check, you’re required by law to gain the candidate’s consent. This means you need to disclose the nature of the check, and gain the candidate’s authorization to proceed.
How does consent work for companies that re-run background checks on a periodic basis -- for example, using Checkr’s subscriptions feature? If you do this, you may want to obtain “evergreen consent” from the candidate.
Evergreen consent means that when a candidate authorizes you to run a background check, they also authorize you to run background checks for the duration of their employment.
As always, we recommend that you consult with your legal counsel on whether and how to use evergreen consent. Consider the following points:
Do you place evergreen consent language in the disclosure form or the authorization form?
- Many companies place the evergreen consent notice in the authorization form, so as not to violate the “sole disclosure” requirement in the Fair Credit Reporting Act (FCRA).
- Upon request, Checkr can provide you with template authorization forms that include evergreen consent language, but you are ultimately responsible for the language you use.
How are you complying with state laws?
- Some state laws, notably California’s Investigative Consumer Reporting Agencies Act (ICRAA), are ambiguous on the topic of evergreen consent. Although the Federal Trade Commission has interpreted the FCRA to allow for consent throughout the course of employment, ICRAA’s language is more ambiguous.
- You may consider asking for disclosure each time you re-run a check for candidates living or working in California.