Background Check Authorization Form: A Guide for Employers
Learn everything you need to know about background check authorization forms, legal compliance requirements, and best practices for HR managers, startup founders, and small business owners.
Introduction
A Background Check Authorization Form is a legal document that employers use to obtain permission from job candidates or employees before conducting background checks. This form is not just a formality—it's a critical compliance requirement under federal and state laws, including the Fair Credit Reporting Act (FCRA). For HR managers, startup founders, and small business owners, understanding how to properly implement background check authorizations can protect your company from potential lawsuits while helping you make informed hiring decisions. This guide explains what these forms must include, how to use them correctly, and common pitfalls to avoid.
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Key Things to Know
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The Background Check Authorization Form must be a standalone document, separate from your employment application and other onboarding paperwork.
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You must provide a clear disclosure that you will be conducting a background check and obtain written authorization before proceeding with any background screening.
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If you take an adverse action (like not hiring someone) based on background check results, you must follow the FCRA's two-step adverse action process, which includes providing pre-adverse action and adverse action notices.
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Different types of background checks (criminal, credit, driving records, etc.) may have different legal requirements and restrictions depending on your state and industry.
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Keep signed authorization forms on file for at least the duration of employment plus any applicable statute of limitations period for potential claims.
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Review and update your Background Check Authorization Forms regularly to ensure continued compliance with changing laws and regulations.
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Consider working with a reputable background check provider that understands compliance requirements and can help you navigate the legal landscape.
Key decisions before you file
Before you file a Background Check Authorization Form in Colorado, a few decisions shape the document: which option to choose and what each one means. The Background Check Authorization Form guide walks through them.
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Colorado Requirements for Background Check Authorization Form
FCRA Disclosure Requirement (15 U.S.C. § 1681b(b)(2)(A)(i))
A clear and conspicuous disclosure must be made in writing to the applicant before the background check is conducted, in a document that consists solely of the disclosure.
FCRA Written Authorization (15 U.S.C. § 1681b(b)(2)(A)(ii))
The employer must obtain written authorization from the applicant before procuring a consumer report for employment purposes.
Colorado Consumer Credit Reporting Act Compliance (Colorado Revised Statutes § 12-14.3-101 et seq.)
Employers must comply with Colorado's Consumer Credit Reporting Act which provides additional protections for consumers regarding credit information used for employment purposes.
Colorado Employment Opportunity Act (Colorado Revised Statutes § 8-2-126)
Restricts employers from using credit information in employment decisions unless the information is substantially related to the employee's current or potential job responsibilities.
Pre-Adverse Action Notice (15 U.S.C. § 1681b(b)(3)(A))
Before taking adverse action based on a consumer report, employers must provide the applicant with a copy of the report and a summary of their rights under the FCRA.
Post-Adverse Action Notice (15 U.S.C. § 1681m(a))
After taking adverse action based on a consumer report, employers must provide notice to the applicant about the action taken and provide information about the consumer reporting agency used.
Colorado Ban the Box Law (Colorado Revised Statutes § 8-2-130)
Prohibits employers from stating in job advertisements or applications that a person with a criminal history may not apply, and from inquiring about criminal history on an initial application.
Colorado Equal Pay for Equal Work Act (Colorado Revised Statutes § 8-5-101 et seq.)
Prohibits discrimination in employment based on sex and requires transparency in job opportunities and pay, which may affect how background information is used in hiring decisions.
Colorado Anti-Discrimination Act (Colorado Revised Statutes § 24-34-401 et seq.)
Prohibits discrimination in employment based on protected characteristics, which affects how background check information can be used in employment decisions.
Title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq.)
Prohibits employment discrimination based on race, color, religion, sex, and national origin, which affects how background check information can be used in employment decisions.
Americans with Disabilities Act (42 U.S.C. § 12101 et seq.)
Prohibits discrimination against qualified individuals with disabilities, which affects how medical information obtained through background checks can be used.
Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.)
Prohibits age discrimination against individuals who are 40 years of age or older, which affects how age-related information obtained through background checks can be used.
Colorado Medical Marijuana Law (Colorado Constitution Article XVIII, Section 14)
Provides protections for medical marijuana users, which may affect drug testing policies as part of background checks.
Colorado Recreational Marijuana Law (Colorado Constitution Article XVIII, Section 16)
Legalized recreational marijuana use, which may affect drug testing policies as part of background checks.
Driver's Privacy Protection Act (18 U.S.C. § 2721 et seq.)
Restricts the disclosure and use of personal information contained in motor vehicle records, which affects background checks that include driving records.
Colorado Open Records Act (Colorado Revised Statutes § 24-72-201 et seq.)
Governs access to public records in Colorado, which may be used in background checks.
Colorado Criminal Justice Records Act (Colorado Revised Statutes § 24-72-301 et seq.)
Regulates access to criminal justice records, which are often used in background checks.
Genetic Information Nondiscrimination Act (42 U.S.C. § 2000ff et seq.)
Prohibits discrimination based on genetic information, which affects how genetic information potentially obtained through background checks can be used.
Immigration Reform and Control Act (8 U.S.C. § 1324a)
Requires employers to verify the identity and employment eligibility of all employees, which affects background check processes.
Colorado Social Media Privacy Law (Colorado Revised Statutes § 8-2-127)
Prohibits employers from requesting access to an employee's or applicant's personal social media accounts, which affects what can be included in background checks.