A Background Check Disclosure Should Stand Alone

A few years ago, the FCRA mandated that the disclosure form must be a stand alone, conspicuous  document separate from a job application or any other waivers or acknowledgements. This was done to ensure that the applicant had a clear understanding that they were providing authorization to have a background check conducted.

Fast forward to 2017.  Companies are still finding themselves in trouble due to not following this FCRA mandate. Much of the recent litigation pertaining to this issue has centered on whether the employers’ disclosure form included a release of liability or other information which would then make the disclosure an invalid document.

In a case heard by the Ninth Circuit Court of Appeals in January, it was found that the inclusion of language around a waiver of liability did indeed violate the FCRA’s requirement that the disclosure be a stand alone, conspicuous document. While the Authorization for Background Check should also be separate from the disclosure, the FCRA does allow for an exception within the disclosure for the authorization to be included in the same document…but this is the only exception allowed. Any variation from this creates an opportunity for the employee to bring this type of lawsuit against an employer. In this particular case, Syed v. M-I, LLC, the employer was found to have willfully violated the FCRA.

It should be noted that willful violations of the FCRA  can result in actual or statutory damages from $100 to $1,0000 per violation.

It is important that companies review their background check forms and ensure that they are FCRA compliant, even if given to them by a third party vendor. A good review of the provisions of conducting background checks, as well as FCRA guidelines is a must for any human resources and operations department to ensure that the company is compliant in order to avoid litigation down the road.

For more information on the litigation mentioned above, please visit http://tiny.cc/FCRA-disclosure.