We are going back to basics with this blog post, outlining the disclosure and authorization requirements under the Federal Fair Credit Reporting Act (“FCRA”). Please note that the FCRA has disclosure and authorization requirements for non-employment screening and investigative consumer reports, but this blog will focus on consumer reports in the employment screening context. If you have a different permissible purpose for screening or request investigative consumer reports, please review the FCRA and engage knowledgeable legal counsel to determine your specific obligations.
FCRA Section 604 states: “… (2) Disclosure to Consumer … (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless – (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.”
An employer who would like to request a background check on an individual through a consumer reporting agency (e.g., AccuSource) must first provide a disclosure to that individual and obtain his or her authorization. The disclosure must be in writing and must disclose that a consumer report may be obtained for employment purposes. It must also be “clear and conspicuous” and consist “solely of the disclosure,” with the latter requirement being a source of many class action lawsuits. The disclosure must be provided to the individual before the report is procured by the employer. After receipt of the disclosure, the individual must provide written authorization for the consumer report. An employer should ensure that the authorization is signed and dated by the individual before the employer requests the consumer report. The FCRA allows both the disclosure and authorization to be contained within the same document. However, due to class action concerns some employers choose to separate the disclosure and authorization into their own documents, which is the approach taken by AccuSource in our sample disclosure and authorization forms.
States and local jurisdictions may have their own disclosure and/or authorization requirements in addition to those required under the FCRA. For example, California has specific requirements that may impact your organization if your applicant or employee lives in California.
AccuSource provides sample disclosures and authorizations to our clients, which are periodically reviewed and updated as needed. These samples can be found on the Client Education page of our website and a link to the page is provided during account setup. Along with the sample disclosures and authorizations, including those specific to state and local jurisdictions, the page also includes information about other background screening topics such as adverse action. Because AccuSource updates our education page based on changing laws and industry updates, clients should review the page on a regular basis for updates to samples and instructions. Although AccuSource provides sample documents to clients, compliance with certain FCRA requirements, including disclosures and authorizations, is an end-user’s responsibility. AccuSource strongly recommends that you review any sample documentation with knowledgeable legal counsel to ensure that it meets your organization’s specific needs. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at firstname.lastname@example.org.