THE HOT TOPIC OF NON-COMPLIANT FORMS FROM MBI WORLDWIDE BACKGROUND CHECKS
Are your authorization and disclosure forms up-to-date and FCRA compliant? In this article, we are going to dive into the deep end of non-compliance, related to consent forms.
Let me start by asking you a couple questions, (it is ok to be honest).
- Do you know exactly what is on your consent forms and what all the language means?
- Are the documents that you use just some paperwork that you know has to be filled out during the pre-hire process?
Let’s take a few minutes to review these questions and gain a better understanding of their content. It could save your company from future litigation and from losing a lot of the green stuff ($$$).
The FCRA (Fair Credit Reporting Act) is very clear that employers must gain an applicant’s consent in writing before requesting an employment background check on them. There are very important pieces that must be included on these consent forms as well as many pieces that should be dropped if included on forms you are already using to comply with the FCRA.
Document 1: The Disclosure Regarding Background Investigation
The purpose of the disclosure is to inform the applicant that the company is going to run a background screening on them. The disclosure must clearly indicate the purpose of the screening and that it may impact the companies hiring decision.
Tip: If you are planning on doing an “Investigative Consumer Report” which means a background report that may include employment and/or education verifications, you will need to have a separate disclosure form notifying the applicant that such a report will be obtained. You must be clear as possible when informing the applicant about what you are going to be running on them.
Document 2: Acknowledgment and Authorization for Background Check
The purpose of this form is to get the applicant’s permission to conduct the background screening. Basically, they are acknowledging and agreeing to the items discussed on the disclosure forms.
- Make sure there is no indemnity clause or liability waiver included within the content.
- Does not include a question or a checkbox asking about the applicant’s prior criminal history (ie: Ban the Box Laws)
Always also provide: Summary of Rights under the FCRA
Information that needs to be included on both Disclosure and Authorization Forms:
- The Consumer Reporting Agencies contact information (Name, address, phone number) so that the applicant may contact the CRA for dispute purposes
- The nature and scope of the background check
- Both the Disclosure and the Authorization must be signed and dated by the applicant, either electronically or wet signature.
Many states and municipalities have their own required notices that need to be provided to the applicant based on where the applicant lives:
- California Notice of Rights
- Los Angeles Notice to Applicants and Employees for Private Employers
- San Francisco Fair Chance Form
- New Jersey Summary of Rights
- New York Fair Chance Notice
- San Francisco Fair Chance Notice
MBI Worldwide provides each of our clients with the most up-to-date FCRA forms. You may use your own forms, but always make sure to consult your legal team regarding your companies compliance responsibilities under the FCRA and applicable state law.
Bethany Thompson, Compliance Manager
MBI Worldwide Background Checks