Do I Have To Give Consent for a Background Check To Be Conducted?

, | October 5, 2022 | By

Whether you are a hiring manager at a nonprofit, park and rec department, school, YMCA, or other organization, you have likely wondered whether it is legal to request applicants submit to a background check prior to the point of hire. There are good arguments on both sides of the debate regarding whether consent should be necessary for a background check to be conducted. However, few people are aware of the truth of the matter. 

Background Check Purpose 

Organizations that employ people or accept assistance from volunteers are legally empowered to conduct background checks. Human resources professionals, administrators, business owners, and managers are permitted to conduct a background check prior to making a job offer simply because the law says it is legal to do so. The logic in empowering businesses to run background checks on prospective employees and volunteers is that it provides important information regarding the candidate’s background in terms of criminal and employment history (or lack thereof). 

Consent or No Consent? That Is the Question 

Let’s shift our attention to the meat of the matter: consent for background checks. In most instances, pre-employment or pre-volunteer background checks require the consent of the candidate. The logic in requiring approval for a background check prior to extending an offer of employment or a volunteer opportunity is the fact that it digs deep into the background of the candidate to get a sense of who they really are. 

According to the Fair Credit Reporting Act, or FCRA for short, background checks qualify as consumer reports, meaning the applicant’s permission is necessary to request such personal information from a background screening provider or any other third party. Such regulations are applicable to background checks as well as credit reports and searches of criminal records. 

How To Obtain Consent for a Background Check 

Make candidates aware of the fact that a background check is necessary prior to the point of hire or the point of adding to the team as a volunteer, and you’ll be legally empowered to move forward with the background check. The notice of the pending background check and the necessity of the check for employment must be in writing and distinct from the application. 

Furthermore, verbal permission from the candidate is unacceptable. Every business, nonprofit group, and other organization looking to add to their team must obtain written consent from the candidate prior to moving forward with the background check. 

Background Check Rules Are Not Universal 

Though businesses, nonprofit organizations, and other entities are legally allowed to run background checks on applicants for employment and volunteer positions, there are some exceptions. In certain situations, state laws or guidelines are nuanced to the point that it is illegal to conduct certain components of a background check for employment, such as a review of the candidate’s credit. 

The bottom line is that employers and other parties that make hiring and volunteer decisions are to obtain the candidate’s consent to the background check to use the information for legal, employment, or volunteer purposes. 

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