Many companies, as well as other people like landlords who are renting out apartments or homes, need to run background checks on candidates or tenants. It’s a standard part of the employment process for organizations of all shapes and sizes, across various industries. But can employers run a background check on a candidate without the candidate’s consent? Is it illegal to run a background check without express permission?

Is running a background check without permission actually illegal?

The legalities regarding background check permissions aren’t always black and white – but as a general rule, you’ll want to get consent from a candidate before running a background check. Most of the time, it is illegal to conduct a background check without permission. In certain cases, depending on factors like the type of check, the local and state laws, and the particular circumstance, it may not be technically illegal to run a background check without consent. Still, it’s never worth risking.

The Fair Credit Reporting Act (FCRA) protects applicant rights throughout the hiring process, including during background checks, and disregarding this law can get employers into trouble. The FCRA dictates who can provide the information revealed in the reports, who can obtain that information, and the reasons for obtaining the information. It’s also important to understand that the FCRA allows consumers to see and dispute information found in the reports if they think it’s inaccurate, since consumers could be denied employment, tenancy, or a loan because of inaccurate or false information.

What happens if an employer runs a background check without consent?

If an employer disregards the FCRA and runs a background check without getting consent from the employee, they are susceptible to class-action lawsuits. If a candidate or tenant decides to sue because of an illegal background check, the employer or landlord could end up in serious – and financially debilitating – legal trouble. This is why it’s never worth it to risk running background checks on employees without gaining their express and written permission.

How does an employer get permission to run a background check?

The FCRA specifies that a written consent form for a background check needs to be “clear and conspicuous.” This consent and authorization form should be separate from a candidate’s employment application. Additionally, the language on the form should state clearly what kind of background check(s) will be run, what identifying information is required, and that the information in the background check will be used in the employment decision. Applicants should also be made aware that they can receive a copy of their report if they choose.

What about post-employment background checks?

Remember that pre-employment background checks aren’t the only kind out there. Some employers run post-employment screenings as well. Do you need to get permission when running a background check on a current employee? Yes.

The FCRA covers all background checks, not just pre-employment screenings. An employee could still sue their employer if a background check is conducted during their employment without their permission. You’ll want to make it clear to employees when and why you’re conducting a background check, because employees may not understand – or even take offense – that a background check is being conducted on them when they’re already employed.

What if a candidate refuses to give consent?

As an employer, you cannot force a candidate to sign a consent form for a background screening. There is always the possibility that the candidate refuses to sign. But, since you’re entitled to the information you’re seeking, you’re also entitled to take the candidate out of the running. If an employer doesn’t consent to a background check, you reserve the right to refuse them employment.

Get Help With Your Background Screening Needs

Need to run background screenings for prospective employees? Worried about running afoul of FCRA standards or state and local laws? You need a trusted background check provider in your corner. That’s where Metrodata Services comes in.

Our company is certified by the Professional Background Screening Association (PBSA), so you can rest assured you’re staying compliant with all federal, state, and local laws and regulations when conducting background checks. It’s the best way to make sure you’re honoring candidate privacy and staying compliant with the FCRA and other regulations.

Contact a member of our team to learn more about our services. We look forward to becoming your background screening partner.