Can an Employer Conduct a Background Check Without Consent?

These days, it’s rare to find a hiring process that doesn’t include a background check. They have become an indispensable part of hiring a new employee, but they come with legal and ethical considerations that employers must follow carefully. 

One key point is whether employers can perform checks without the consent of the individual in question, so let’s take a look. 

Why Do Employers Conduct Background Checks?

Employers conduct background checks for various reasons, from verifying personal information and background to performing criminal record checks. Screenings minimize potential risks to the organization by carefully screening potential candidates before they join. 

Background checks can help maintain workplace culture, reduce turnover, and minimize the chances of a disruptive employee joining the team. While background checks have become commonplace, they’re entirely optional for most industries. A company isn’t required to perform a background check, but almost all will. 

However, background checks are often legally required for specific industries—such as healthcare, finance, or roles involving vulnerable persons. 

When Is Consent Required for a Background Check?

So, let’s get into the crux of the matter here. Can an employer perform a background check without the candidate’s consent? In short, almost never, but there are a few nuances that employers need to keep in mind. In the U.S., the Fair Credit Reporting Act (FCRA) states that, under federal law, all employers must obtain written consent from candidates before performing any screening that involves consumer reporting agencies. 

This applies to most standard background checks, including those for employment verification, credit history, or criminal records. It ensures that candidates know precisely what information the background check provider will screen, how they will do it, and what they will use it for. Candidates are required to sign a disclosure before the checks commence, essentially consenting to the screening.

There are a few exceptions. If an employer suspects workplace misconduct like fraud, theft, or harassment, they may be allowed to conduct an internal investigation without consent, including background check aspects. However, this is still an area that a business will want to tread carefully, as strict guidelines still cover fairness and confidentiality. Employers may wish to speak with a lawyer before taking these steps.

While the FCRA covers federal matters, some states have stricter rules than others. For example, Florida has practically no limitations on what employers can and cannot screen, while California, Massachusetts, and New York have some of the tightest restrictions. 

What if a Candidate Refuses to Give Consent?

So, what if a candidate refuses to give consent or undergo a background check? In this case, the employer has a difficult decision to make. While candidates aren’t legally required to provide consent, failure to do so will almost always raise a red flag in the employer’s mind. 

Job offers are usually contingent upon successfully passing a screening, and it’s typical that offers are withdrawn if candidates don’t provide consent. However, handling these situations carefully is essential to avoid potential discrimination claims.

Here are some points to consider:

• Transparency: Clearly explain the process, its importance, and how the information will be used. Candidates might not understand the procedure, and it can help to have somebody walk them through it step by step.
• Workarounds: If a candidate has viable reasons for not wanting a background check, an employer might suggest alternative solutions, such as a partial background check or provide additional references 
• Documentation: Carefully documenting the process is always a good idea, as it can protect against future legal ramifications. If a candidate refuses a background check, clearly note this and the reasoning and steps you took to address the matter.

Employee Rights and Employer Responsibilities

It may seem like consenting to a background check is a one-way street, but thanks to the FCRA, candidates are afforded plenty of rights designed to protect their privacy and ensure fair treatment.

Candidate Rights

Under the FCRA, candidates must:

• Be informed: Candidates must always be clearly informed about a background check. It cannot be snuck in along with other paperwork and should be a stand-alone, clearly identifiable disclosure document. 
• Give consent: As we’ve seen, employers cannot perform the checks without written permission. Doing so may lead to severe legal ramifications.
• Access results: Potential candidates can access their results and contest any inaccuracies. It allows them to address potential errors before submitting an adverse action notice.
• Receive an adverse action notice: Should an employer decide to withdraw a job offer based on background check findings, they must provide a written explanation, a copy of the report, and information on how to dispute the conclusions.

Employer Responsibilities

Employers must:

• Carefully follow all FCRA guidelines, including consent and providing disclosures.
• Ensure the information collected is relevant to the job and doesn’t violate anti-discrimination laws.
• Use reputable screening providers who adhere to legal and ethical standards. This is a big one, as failure to do so can easily backfire on an organization. 

Final Thoughts

Not many organizations would consider hiring an individual without at least the most basic background checks. Although screenings have become an integral part of the hiring process, employers must handle them carefully to ensure they adhere to strict employment laws in the United States.

Transparency is key here. Candidates might sometimes fear a background check without completely understanding what it entails. Refusing consent is a legal right, but it should be clearly stated that such a refusal will almost always lead to negative consequences.

At ScoutLogic, we specialize in helping employers conduct thorough, compliant background checks across a range of industries that balance fairness and privacy with rigor and accuracy. Screenings aren’t simply about checking boxes but are designed to ensure that only the best candidates move forward in the process, protecting your organization against unforeseen issues.

David Garcia

David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.

David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.