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 Maryland, 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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Maryland 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.
Maryland Personal Information Protection Act (Md. Code Ann., Com. Law § 14-3503)
Requires businesses that maintain personal information to implement reasonable security procedures and practices to protect personal information from unauthorized access.
Maryland Criminal History Records Check (Md. Code Ann., Pub. Safety § 5-301 et seq.)
Employers in Maryland may request a criminal history records check through the Criminal Justice Information System Central Repository.
Maryland Ban the Box Law (Md. Code Ann., Lab. & Empl. § 3-1401 et seq.)
Prohibits employers with 15 or more full-time employees from asking about criminal history on initial job applications before the first in-person interview.
FCRA Pre-Adverse Action Notice (15 U.S.C. § 1681b(b)(3)(A))
Before taking adverse action based on a consumer report, the employer must provide the applicant with a copy of the report and a summary of their rights under the FCRA.
FCRA Post-Adverse Action Notice (15 U.S.C. § 1681m(a))
After taking adverse action based on a consumer report, the employer must provide specific information to the applicant about the action taken and the consumer reporting agency used.
Maryland Equal Pay for Equal Work (Md. Code Ann., Lab. & Empl. § 3-301 et seq.)
Prohibits employers from discriminating in providing employment opportunities based on sex or gender identity, which may affect how background check information is used in hiring decisions.
EEOC Guidance on Background Checks (42 U.S.C. § 2000e et seq.)
Background checks must comply with federal laws prohibiting discrimination, including Title VII of the Civil Rights Act of 1964.
Maryland Human Relations Act (Md. Code Ann., State Gov't § 20-601 et seq.)
Prohibits discrimination in employment based on race, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity, genetic information, or disability.
FCRA Accuracy and Dispute Resolution (15 U.S.C. § 1681i)
Employers must provide information about the consumer reporting agency's dispute resolution process and the applicant's right to dispute inaccurate information.
Maryland Social Media Privacy Protection (Md. Code Ann., Lab. & Empl. § 3-712)
Prohibits employers from requesting or requiring that applicants or employees disclose usernames or passwords for personal social media accounts.
FCRA Investigative Consumer Reports (15 U.S.C. § 1681d)
Additional disclosure requirements apply when obtaining investigative consumer reports, which include personal interviews with neighbors, friends, or associates.
Maryland Credit History Limitations (Md. Code Ann., Lab. & Empl. § 3-711)
Restricts employers from using an applicant's or employee's credit history in making employment decisions unless certain exceptions apply.
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.
Maryland Expungement Law (Md. Code Ann., Crim. Proc. § 10-109)
Employers may not require disclosure of expunged criminal charges, and applicants may legally answer 'no' to questions about expunged records.
FCRA Disposal Rule (16 C.F.R. § 682.3)
Requires proper disposal of information in consumer reports and records to protect against unauthorized access or use of the information.
Maryland Wage History Ban (Md. Code Ann., Lab. & Empl. § 3-304.2)
Prohibits employers from seeking or relying on wage history information from applicants or their current or former employers.
FCRA Statute of Limitations (15 U.S.C. § 1681p)
Specifies the time limits within which civil actions for FCRA violations must be filed, which is generally two years after discovery of the violation or five years after the violation, whichever is earlier.
Maryland Public Information Act (Md. Code Ann., Gen. Provisions § 4-101 et seq.)
Governs access to public records, which may include certain background check information held by state agencies.