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Wednesday, July 6, 2022

Who Can See a Background Check?

You’re an employer who faithfully runs background checks on all your employees. You have a tight, well-defined screening policy that is consistently applied and you use a professional background screening agency to provide all your background check services, including compliance, drug testing, identity checks, and criminal background checks. You have a client who has asked to see the background report on one of your employees who is working at their facility. Are you legally able to pass that report along?

The central issue here is this: are background check reports confidential? The answer is yes, but that doesn’t mean no one can see the report. The federal Fair Credit Reporting Act (FCRA) provides extensive protections surrounding who can access personal information, how that information can be used, and how that info can be stored and disposed of. The following need to be considered when sharing background check reports:

  • Permissible Purpose: The FCRA states that, in order to request an employment background check, the requestor must have a permissible purpose. In general, employment is considered a permissible purpose, meaning that anyone evaluating an individual for employment, retention, or termination is legally allowed to request a report. In the example given above, it’s likely that both you and your client have a permissible purpose for viewing background check reports.
  • Consent: While the FCRA grants employers the right to request background checks, it also gives individuals the right to consent to those checks. Per FCRA regulations, individuals must provide clear, written authorization to conduct a background check and to release the information contained in the report. If you know your clients are requesting background check info on your employees, your FCRA disclosures must include language authorizing you to release information to third parties who have a legal right (permissible purpose) to view that info. Said another way, you’ll need to make certain you clarify in your consent forms who is requesting and viewing the background checks reports.
  • In addition to considering permissible purposes and consent forms, you’ll also need to determine if your contract with your background screening provider allows you to share reports with other parties.

Why Would This Type of Sharing Ever Be Necessary?

Is it realistic to anticipate that a client might want to request access to background info on your employers? Why is this something anyone would ever want to do? This actually happens frequently for the following reasons:

  • Your client has liability issues surrounding anyone working on their property regardless of whose payroll they’re on. If your employee commits a crime at your client’s workplace while working, you could actually both be liable, which is why you both need access to the background check report.
  • If you’ve made representations to your client about background screening, they have a right to determine if you are meeting your obligations.

The Bottom Line

This is a great question to take to your legal counsel and your background check provider. Together, you can determine the best course of action.

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