Background checks are a standard part of the employment process for many employers – whether screening a candidate or a current member of your workforce. You may have wondered: Is running a background check without a person’s consent okay? Is it even legal?!

Navigating Background Checks on Employees

Not Worth the Risk

As a general rule, you do need consent from a candidate or employee before proceeding with a background check on them. The legalities aren’t always crystal clear, but in most cases, it’s not only poor business practice, but it’s also against the law to go ahead without first obtaining that permission.

• The Fair Credit Reporting Act (FCRA) protects job applicants’ rights throughout the hiring process, including during background checks. The FCRA dictates who can provide the information revealed during these checks, as well as who can obtain it and the reasons behind it. The FCRA also allows consumers to see and dispute any information found in background checks. If you disregard the FCRA and run a background check on someone without their consent, you are susceptible to legal action against you.

Get Written Consent

The FCRA specifies that employers should get a written consent form before initiating a background check, and that such a check must be “clear and conspicuous.” A consent and authorization form for the check must be separate from a person’s employment application. Additionally:

• Language on the form should clearly state what kind of background check you will be running, what identifying information will be required, and that this information will be used as part of your employment decision. Job applicants must be informed that they can receive a copy of the report if desired.
• You can’t force someone to sign a consent form. If a person refuses to sign, this doesn’t change the fact that you’re entitled to the information you seek. If a candidate doesn’t consent to a background check, you reserve the right to refuse them employment.

The Rules Also Apply to Current Employees

Current workforce members also can sue you if you conduct a background check on them without their permission. Make it clear to them when and why you’re taking this step; otherwise, they may not understand or accept your reason for doing so.

Looking for Assistance from a Proven Compliance Provider? Key HR Can Help!

If you need assistance with background checks on current or prospective employees, consider having a trusted compliance provider in your corner. To determine if this is the best plan for your company, contact Key HR today! We’re aligned with a comprehensive spectrum of provider companies to meet this, and all your recruitment and talent management needs. Our services include professional employer organization (PEO) options, as well as payroll, employee leasing, benefits, and insurance needs. Contact us today to learn more.