Liability Releases for Background Checks Are Unlawful

Employers in all industries perform background checks as a part of their pre-employment screening process, sometimes performing such checks post-employment, as well. The federal Fair Credit Reporting Act (FCRA) requires employers to first inform applicants and employees about the intent to obtain and use a background check to make employment-related decisions before the employers are permitted to actually get the background check. The FCRA also requires employers to obtain the employee's or applicant's permission before procuring the background check. But what the law does not do is provide employers with a template disclosure or any concrete guidance on what the disclosure should say. Rather, the law simply forbids employers from including anything beyond “solely the disclosure” and authorization in the form used to inform individuals about the employer's intent to obtain a background check.