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 Virginia, 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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Virginia 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.
Virginia Consumer Data Protection Act Compliance (Va. Code § 59.1-571 et seq.)
Employers must inform applicants about the collection, use, and disclosure of their personal data and obtain consent for processing sensitive data.
Pre-Adverse Action Notice (15 U.S.C. § 1681b(b)(3)(A))
Before taking adverse action based on a consumer report, employers 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 a consumer report, employers must provide notice to the applicant of the action taken, information about the consumer reporting agency, and rights to dispute information.
Virginia Criminal History Record Information Restrictions (Va. Code § 19.2-392.4)
Employers must comply with Virginia's restrictions on using criminal history information in employment decisions, including consideration of the nature of the crime and its relation to the position.
Ban-the-Box Compliance (Va. Code § 2.2-2903.1)
For state agencies in Virginia, employers cannot ask about criminal history on initial employment applications and must defer such inquiries until after a conditional offer of employment.
Equal Employment Opportunity Compliance (42 U.S.C. § 2000e et seq.)
Background checks must be conducted in a manner that does not discriminate based on protected characteristics such as race, color, religion, sex, or national origin.
Virginia Human Rights Act Compliance (Va. Code § 2.2-3900 et seq.)
Background checks must not be used to discriminate against applicants based on race, color, religion, national origin, sex, pregnancy, childbirth, age, marital status, disability, or military status.
Americans with Disabilities Act Compliance (42 U.S.C. § 12101 et seq.)
Medical inquiries must be job-related and consistent with business necessity, and employers must provide reasonable accommodations for qualified individuals with disabilities.
Virginia Drug Testing Law Compliance (Va. Code § 65.2-813.2)
Employers conducting drug testing as part of background checks must comply with Virginia's laws regarding workplace drug testing procedures and privacy protections.
Driver's Privacy Protection Act Compliance (18 U.S.C. § 2721 et seq.)
When obtaining driving records as part of a background check, employers must comply with restrictions on the use and disclosure of personal information from motor vehicle records.
Virginia Employment Records Privacy (Va. Code § 40.1-28.7:4)
Employers must maintain the confidentiality of applicant and employee records, including background check information, and limit access to authorized personnel with legitimate business needs.
Disposal Rule Compliance (16 C.F.R. § 682.3)
Employers must properly dispose of background check information and consumer reports by taking reasonable measures to protect against unauthorized access or use of the information.
Virginia Data Breach Notification Law (Va. Code § 18.2-186.6)
Employers must notify affected individuals if personal information collected during background checks is compromised in a data breach.
Credit Check Limitations (15 U.S.C. § 1681b(b)(2))
Employers must have a legitimate business purpose related to the position when conducting credit checks and must comply with additional notice requirements.
Virginia Wage Payment Law Compliance (Va. Code § 40.1-29)
If employers charge applicants for background checks, they must comply with Virginia's wage payment laws regarding deductions from wages or requiring payment as a condition of employment.
Social Media Privacy Protection (Va. Code § 40.1-28.7:5)
Employers should be aware of limitations on requesting social media account information from applicants during the background check process.
Immigration Reform and Control Act Compliance (8 U.S.C. § 1324a)
Background checks related to employment eligibility verification must comply with federal requirements for verifying identity and employment authorization.
Virginia Right to Work Law (Va. Code § 40.1-58 et seq.)
Background checks cannot be used to determine an applicant's union membership or affiliation as a condition of employment.