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 New Jersey, 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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New Jersey Requirements for Background Check Authorization Form
FCRA Disclosure Requirement (Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(2)(A)(i))
The form must include a clear and conspicuous disclosure that a consumer report may be obtained for employment purposes, and this disclosure must be in a standalone document.
FCRA Written Authorization (Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(2)(A)(ii))
The form must obtain written authorization from the applicant or employee before procuring a consumer report for employment purposes.
FCRA Pre-Adverse Action Notice (Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(3)(A))
If adverse action is contemplated based on the background check, the employer must provide the applicant with a copy of the report and a summary of their rights under the FCRA before taking adverse action.
New Jersey Opportunity to Compete Act (Ban the Box) (N.J.S.A. 34:6B-11 to 19)
Employers with 15 or more employees cannot inquire about an applicant's criminal history during the initial employment application process. The background check authorization should only be provided after the initial interview.
New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq.)
The form must not enable discrimination based on protected characteristics including race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability, atypical hereditary cellular or blood trait, or military service.
New Jersey Expungement Law Compliance (N.J.S.A. 2C:52-1 et seq.)
The form should acknowledge that expunged records should not be considered in employment decisions, as New Jersey law prohibits discrimination based on expunged criminal records.
New Jersey Credit Check Restrictions (N.J.S.A. 34:6B-1 et seq.)
The form must specify if a credit check will be conducted, as New Jersey restricts the use of credit checks for certain positions and requires specific disclosure.
EEOC Compliance Statement (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.)
The form should include language confirming that background information will be used in compliance with Equal Employment Opportunity Commission guidelines, which prohibit discrimination based on protected characteristics.
Americans with Disabilities Act Compliance (Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.)
The form must ensure that any medical information obtained through background checks is handled in accordance with ADA requirements, including confidentiality provisions.
Genetic Information Nondiscrimination Act (Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq.)
The form must include language prohibiting the collection or use of genetic information for employment decisions.
New Jersey Security Breach Disclosure Law (N.J.S.A. 56:8-163)
The form should include provisions regarding the protection of personal information collected and notification requirements in case of a data breach.
New Jersey Identity Theft Prevention Act (N.J.S.A. 56:11-44 et seq.)
The form must address how personal identifying information will be protected from unauthorized access or use.
Driver's Privacy Protection Act (18 U.S.C. § 2721 et seq.)
If driving records will be checked, the form must comply with DPPA requirements for obtaining and using motor vehicle records.
New Jersey Driver History Abstract Consent (N.J.A.C. 13:18-11.3)
The form must include specific consent language if the employer will be obtaining the applicant's driving record from the New Jersey Motor Vehicle Commission.
Consumer Financial Protection Bureau Regulations (12 CFR Part 1022)
The form must comply with CFPB regulations regarding the format and content of consumer disclosures related to background checks.
New Jersey Civil Rights Act (N.J.S.A. 10:6-1 et seq.)
The form must not enable practices that would deprive individuals of rights secured by the Constitution or laws of the United States or New Jersey.
New Jersey Wage and Hour Laws (N.J.S.A. 34:11-4.1 et seq.)
If the background check will include verification of past employment and wages, the form must comply with New Jersey wage and hour laws regarding employment records.
New Jersey Consumer Fraud Act (N.J.S.A. 56:8-1 et seq.)
The form must not contain misleading statements or omissions that could constitute consumer fraud under New Jersey law.
Right to Privacy Acknowledgment (N.J. Const. art. I, para. 1)
The form should acknowledge the applicant's right to privacy under both federal and New Jersey constitutional principles, and explain how the background check process respects these rights.
Social Media Privacy Protection (N.J.S.A. 34:6B-5 et seq.)
The form must not request or require applicants to provide access to personal social media accounts, as prohibited by New Jersey law.