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 Utah, 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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Utah 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.
Utah Employment Selection Procedures Act (Utah Code § 34-46-101 et seq.)
Employers must ensure that background checks are job-related and consistent with business necessity.
Utah Internet Employment Privacy Act (Utah Code § 34-48-201)
Employers cannot request passwords to personal internet accounts or require an employee to add the employer to their contacts list.
Utah Criminal History Employment Act (Utah Code § 34-52-201)
Employers with 15 or more employees may not ask about an applicant's criminal history before an initial interview or, if no interview, before a conditional job offer.
Utah Consumer Credit Protection Act (Utah Code § 13-45-101 et seq.)
Provides additional protections for consumer credit information used in employment decisions.
EEOC Compliance (42 U.S.C. § 2000e et seq. (Title VII); 42 U.S.C. § 12101 et seq. (ADA); 29 U.S.C. § 621 et seq. (ADEA))
Background checks must not discriminate against applicants based on protected characteristics such as race, color, national origin, sex, religion, disability, genetic information, or age.
Utah Antidiscrimination Act (Utah Code § 34A-5-101 et seq.)
Prohibits employment discrimination based on race, color, sex, pregnancy, age, religion, national origin, disability, sexual orientation, or gender identity.
FCRA Certification to CRA (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 equal employment opportunity laws.
FCRA Adverse Action Requirements (15 U.S.C. § 1681m(a))
After taking adverse action based on information in a consumer report, the employer must provide notice of the adverse action, contact information for the consumer reporting agency, a statement that the agency did not make the decision, and notice of the right to dispute the accuracy of the information.
Utah Right to Privacy (Utah Constitution, Article I, Section 14)
Recognizes an individual's right to privacy and requires employers to respect this right when conducting background checks.
Utah Public Records Access (Utah Code § 63G-2-101 et seq. (Government Records Access and Management Act))
Governs access to public records that may be used in background checks, including criminal records.
FCRA Investigative Consumer Report Requirements (15 U.S.C. § 1681d)
Additional disclosure requirements apply when obtaining an investigative consumer report, which includes personal interviews with neighbors, friends, or associates.
Utah Drug and Alcohol Testing Act (Utah Code § 34-38-1 et seq.)
Establishes requirements for workplace drug and alcohol testing, which may be part of a comprehensive background check.
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.
Utah Personal Information Protection Act (Utah Code § 13-44-101 et seq.)
Requires businesses to implement reasonable procedures to protect personal information and provides for notification in case of a security breach.
FCRA Statute of Limitations (15 U.S.C. § 1681p)
Establishes time limits for bringing civil actions for violations of the FCRA, which is generally two years after discovery of the violation or five years after the violation, whichever is earlier.
Utah Limitation of Actions (Utah Code § 78B-2-101 et seq.)
Sets time limits for bringing civil actions under Utah law, which may apply to claims related to background checks.
FCRA Civil Liability (15 U.S.C. §§ 1681n, 1681o)
Establishes civil liability for willful or negligent noncompliance with FCRA requirements, including actual damages, statutory damages, punitive damages, and attorney's fees and costs.