Do I need to obtain a release from a potential employee before running a background check?

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Generally, you are required to obtain written permission from job applicants, contractors, employees or volunteers before you can run background checks. The federal law that pertains to employment screening is the FCRA, otherwise known as the Fair Credit Reporting Act. The Federal Trade Commission is the agency responsible for oversight and enforcement. Employers, which include nonprofit organizations, are subjected to the requirements of the FCRA only if they employ the services of a consumer reporting agency. Companies that elect to conduct their background checks in-house are not obligated to follow this law. Also, if the job salary is $75,000 or more a year, the employer is exempt from the FCRA.

Besides getting the written permission of a potential employee, you also have to make sure that permission is obtained on a separate form aside from other documents the person may receive. The FCRA also requires you to give the person a copy the Summary of Rights. In addition, once written consent is given, if the applicant is hired, the employer is not obligated to obtain further written permission to run an employment screening check anytime during the course of employment. Some state laws are more stringent than the FCRA. State statutes may require you to get the written permission of a person regardless of whether your staff does the background investigation or you hire a company that offers background check services.

In 1998, the Federal Trade Commission made an exception to the general FCRA requirements for employers in the trucking industry: employment applications that are received by telephone, mail or electronic methods of delivery do not have require written permission for background checks from the job applicants who are subjected to state or federal regulations. If the employer does not hire the job candidate because of information contained in an employment screening report, the employer must give the person an oral, written or electronic document called an “adverse action” disclosure within three days of making their decision.

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