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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

  1. 1

    The Background Check Authorization Form must be a standalone document, separate from your employment application and other onboarding paperwork.

  2. 2

    You must provide a clear disclosure that you will be conducting a background check and obtain written authorization before proceeding with any background screening.

  3. 3

    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.

  4. 4

    Different types of background checks (criminal, credit, driving records, etc.) may have different legal requirements and restrictions depending on your state and industry.

  5. 5

    Keep signed authorization forms on file for at least the duration of employment plus any applicable statute of limitations period for potential claims.

  6. 6

    Review and update your Background Check Authorization Forms regularly to ensure continued compliance with changing laws and regulations.

  7. 7

    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 Texas, 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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Texas 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.

  • FCRA 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.

  • Texas Business and Commerce Code - Consumer Credit Reporting (Texas Business and Commerce Code § 20.01 et seq.)

    Texas law requires compliance with state-specific provisions regarding consumer credit reporting for employment purposes.

  • Texas Workforce Commission Guidelines (Texas Labor Code § 301.001 et seq.)

    Employers must comply with Texas Workforce Commission guidelines regarding background checks and employment screening.

  • Ban the Box Compliance (Austin City Code § 4-15-1 et seq.; San Antonio City Code § 9-640 et seq.)

    While Texas does not have a statewide ban-the-box law, certain municipalities like Austin and San Antonio have ordinances restricting when employers can inquire about criminal history.

  • Equal Employment Opportunity Commission Guidelines (42 U.S.C. § 2000e et seq.)

    Background checks must comply with federal anti-discrimination laws, including Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

  • Texas Commission on Human Rights Act (Texas Labor Code § 21.001 et seq.)

    State law prohibiting employment discrimination that mirrors federal protections and applies to how background check information can be used in employment decisions.

  • 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 applicable federal or state equal opportunity law.

  • Disposal Rule Compliance (16 C.F.R. § 682.3)

    Proper disposal of background check information is required to protect privacy and prevent unauthorized access to consumer information.

  • Texas Identity Theft Enforcement and Protection Act (Texas Business and Commerce Code § 521.001 et seq.)

    Requirements for safeguarding sensitive personal information collected during background checks and notification requirements in case of data breaches.

  • Texas Medical Privacy Act (Texas Health and Safety Code § 181.001 et seq.)

    Protections for medical information that might be obtained during certain types of background checks.

  • FCRA Investigative Consumer Report Disclosure (15 U.S.C. § 1681d)

    Additional disclosure requirements if the background check includes interviews with the applicant's friends, neighbors, or associates about character, reputation, etc.

  • Texas Deceptive Trade Practices Act (Texas Business and Commerce Code § 17.41 et seq.)

    Prohibits deceptive practices in business transactions, which could apply to misrepresentations about how background check information will be used.

  • Americans with Disabilities Act Compliance (42 U.S.C. § 12101 et seq.)

    Restrictions on obtaining and using medical information in employment decisions, including through background checks.

  • Texas Drug Testing Regulations (Texas Labor Code § 21.120)

    Requirements for drug testing as part of background screening, including consent and privacy protections.

  • FCRA Statute of Limitations for Reporting (15 U.S.C. § 1681c)

    Limitations on reporting certain information after specified time periods, such as civil suits, judgments, arrests, and other adverse information.

  • Texas Public Information Act (Texas Government Code § 552.001 et seq.)

    Governs access to public records that might be used in background checks, including criminal records maintained by state agencies.

  • Driver Privacy Protection Act (18 U.S.C. § 2721 et seq.)

    Restricts the disclosure of personal information in motor vehicle records that might be accessed during background checks.

  • Texas Motor Vehicle Records Disclosure Act (Texas Transportation Code § 730.001 et seq.)

    State law governing the disclosure of information from motor vehicle records for employment verification purposes.

Frequently Asked Questions