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 Maine, 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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Maine 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.
Maine Criminal History Record Information Act Compliance (16 M.R.S. § 701 et seq.)
Employers must comply with Maine's Criminal History Record Information Act when requesting criminal history information as part of a background check.
Maine Human Rights Act - Non-Discrimination (5 M.R.S. § 4571-4572)
Background check procedures must not discriminate against applicants based on protected characteristics including race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin.
Pre-Adverse Action Notice (15 U.S.C. § 1681b(b)(3)(A))
Before taking adverse action based on information in a consumer report, the employer 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 information in a consumer report, the employer must provide specific notices to the applicant including information about the consumer reporting agency and the applicant's rights to dispute the information.
Maine Employment Records Statute (26 M.R.S. § 631)
Employers must maintain proper records of background checks and authorizations in accordance with Maine's employment records requirements.
Maine Prohibition on Credit History Discrimination (26 M.R.S. § 600-A)
Employers in Maine are restricted from using credit history information in employment decisions unless required by law or substantially job-related.
FCRA Certification to Consumer Reporting Agency (15 U.S.C. § 1681b(b)(1))
Employers must certify to the consumer reporting agency that they will comply with FCRA requirements and will not use the information in violation of any federal or state equal opportunity law.
Maine Social Media Privacy Law (26 M.R.S. § 615)
Employers cannot require applicants to disclose social media account information or passwords as part of the background check process.
FCRA Investigative Consumer Report Notice (15 U.S.C. § 1681d)
If an investigative consumer report (involving personal interviews) will be requested, additional disclosures about the nature and scope of the investigation must be provided.
Maine Medical Information Privacy (22 M.R.S. § 1711-C)
Background checks that involve medical information must comply with Maine's medical information privacy provisions.
FCRA Accuracy and Dispute Resolution (15 U.S.C. § 1681i)
The authorization form should inform applicants of their right to dispute the accuracy or completeness of any information in the consumer report.
Maine Ban-the-Box Provisions (5 M.R.S. § 792)
While Maine does not have a comprehensive ban-the-box law for private employers, state employers are prohibited from asking about criminal history on initial employment applications.
FCRA Statute of Limitations Notice (15 U.S.C. § 1681p)
The authorization should inform applicants about the statute of limitations for bringing an action against an employer for FCRA violations.
Maine Substance Use Testing Law (26 M.R.S. § 681-690)
If the background check includes substance use testing, employers must comply with Maine's specific requirements for substance use testing policies and procedures.
FCRA Disposal Rule (16 C.F.R. § 682.3)
The form should mention that when consumer information is no longer needed, it will be disposed of securely in compliance with the FCRA Disposal Rule.
Maine Right to Know Law (26 M.R.S. § 631)
Applicants have the right to know what information is being collected about them and how it will be used in the employment decision-making process.
EEOC Guidance Compliance (42 U.S.C. § 2000e et seq.)
Background check procedures must comply with EEOC guidance on the use of arrest and conviction records in employment decisions under Title VII.
Maine Confidentiality of Records (26 M.R.S. § 631)
Employers must maintain the confidentiality of background check information and limit access to authorized personnel with a need to know.