Does an Employer Need Written Permission to Run a Background Check?

In most cases, yes. An employer that orders a background report from a consumer reporting agency for employment purposes needs the person's written authorization first. Under 15 U.S.C. 1681b(b)(2)(A), except as provided in 1681b(b)(2)(B), the employer may not procure the report unless both of these steps happen:

• A clear and conspicuous disclosure is made in writing to the person before the report is procured, in a document that consists solely of the disclosure, stating that a consumer report may be obtained for employment purposes
• The person authorizes the report in writing, and the authorization may be on the same document as the disclosure

Under 1681b(b)(2)(B) and (C), a different rule applies to a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service under 49 U.S.C. 31502, or a position subject to safety regulation by a State transportation agency, when the person applies by mail, telephone, computer or other similar means and, as of the time the employer procures the report, that has been the only interaction between the person and the employer in connection with the application. In that case, the employer gives oral, written or electronic notice that a consumer report may be obtained, along with a summary of the person's rights, and the person may consent orally, in writing or electronically.

According to the EEOC and FTC publication Background Checks: What Employers Need to Know, the notice must be in a stand-alone format and cannot be in an employment application. Minor additional information, such as a brief description of the nature of consumer reports, may be included only if it does not confuse or detract from the notice. If the employer wants the authorization to cover background reports throughout the person's employment, the publication says to state that clearly and conspicuously.

The employer also certifies to the company providing the report that it notified the person and got permission, complied with the FCRA requirements and will not misuse the information in violation of equal opportunity laws. For an investigative report based on personal interviews about character, general reputation, personal characteristics and lifestyle, the employer also tells the person of the right to a description of the nature and scope of the investigation. Under 15 U.S.C. 1681d(a), the employer discloses in writing that such a report may be made no later than three days after the report is first requested. Under 1681d(b), on the person's written request, the employer discloses the nature and scope of the investigation in writing no later than five days after the request is received or the report is first requested, whichever is later. A DOT-regulated employer also needs separate written consent before asking previous employers for drug and alcohol testing records, as covered in What Testing Records Must Employers Request from Previous DOT Employers?.

A Browse Directory link in the MyDrugTesting.com site footer opens the provider directory.