In the last article we discussed the disclosure to the applicant. You must disclose to your applicant that you are going to obtain their consumer report and that you will use this information as a factor in deciding whether you will employ them.
You can’t, however, stop there. You must obtain written authorization prior to ordering the information. The Federal Trade Commission (FTC) has written in their guidance for employers:
Get written permission from the applicant or employee. This can be part of the document you use to notify the person that you will get a consumer report. If you want the authorization to allow you to get consumer reports throughout the person’s employment, make sure you say so clearly and conspicuously.
In the last article we discussed how lawsuits have exploded against employers for using disclosures and authorizations that are not compliant with the Fair Credit Reporting Act (FCRA) which governs the use of information provided by VICTIG. In particular, employers tend to gum up their disclosures with extraneous information or stipulations. A common mistake is to put a waiver of liability in the disclosure or authorization.
You do not want to have any waiver in the document. “I authorize you to obtain consumer reports on me and also agree to not take action against you if you don’t hire me based on these reports” seems to make sense but is in violation on its face. You disclose to the applicant, you get permission (authorization) from the applicant, and you don’t add other provisions within the disclosure and authorization, or even on the same page of these documents.
Review your authorization document with counsel. VICTIG cannot provide you with legal advice, but we do make available to you a template authorization for your consideration with counsel.
