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FCRA Compliance

Everything You Need To Know

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Are you using our background checks for employment purposes?

If so, then you are legally required to follow the requirements of the Fair Credit Reporting Act (FCRA). This federal law protects the privacy and rights of the subjects of consumer reports. Background checks used for employment purposes qualify as consumer reportsunder the law. As such, they are subject to the FCRA. The FCRA applies to employers and consumer reporting agencies, or CRAs. FCRA compliance is critical for businesses.

Note that “employment purposes” include more than just part-time or full-time employees. The FCRA also applies when selecting contractors, temporary workers, volunteers, and others. Whenever you use a background check to vet someone for these positions, the FCRA applies. Read on for a guide to the major FCRA requirements you must know and follow.

What is the FCRA?

The Fair Credit Reporting Act, or FCRA, became law in 1971. The goal: ensure that consumer reporting agencies acted with greater fairness. The FCRA aimed to create greater impartiality and respect for the consumer’s right to privacy. The FCRA protects the subject of a check by limiting what a CRA can report.

Despite its name, the law goes beyond credit reports. Today, the law replies to any kind of consumer report that includes the following:

  • Information about someone’s character

  • Someone’s reputation

  • Mode of living

  • Criminal records, and so on.

The FCRA applies whenever this information determines credit, insurance, or job eligibility. Background check agencies fall under the law because they provide reports for employment purposes.

FCRA Disclosure Requirements

Within FCRA regulations, there are several rules about what agencies can report. For instance, bankruptcy cases can be no older than ten years. Other adverse information, such as civil judgments, can last seven years. The only exceptions are criminal conviction records. Unless expunged, criminal convictions can appear on a background check report indefinitely. No medical information should appear on consumer reports unless the report is for insurance.

The FCRA also requires employers to disclose when they plan to use consumer reports. Businesses must always get an individual’s consent to such a check. In this way, the FCRA protects consumers before, during, and after screening.

Let’s look more closely at those stages.

Before using our services

You should understand the relationship of the FCRA to background check processes. Because this law governs so much of the hiring process, you can’t afford to overlook it. The Consumer Financial Protection Bureau has many helpful tools in this area. Before conducting a background check, you should read the CFPB’s “Notice to Users of Consumer Reports.” This document helps support FCRA-compliant background check procedures. Here’s what else you should know.

Before the check: what to know

The first steps of the FCRA background screening process are straightforward. Both the employer and job applicants have some steps to take.

First, as the employer, you must give the applicant a disclosure form. The informs the applicant that you will check their record for employment purposes. This disclosure must be separate from any other documents. For instance, you cannot bundle the disclosure with your employment application. Likewise, you can’t hide it alongside a release of liability. The courts are clear on this subject. The disclosure must be truly “standalone.”

Second, the applicant must sign an electronic or written authorization form. This authorizes the employer to run a background check. Similar to the disclosure form, the consent form should be distinct from other application documents.

The FCRA permits the combination of the disclosure form and the authorization form. You can choose to present them separately if desired. If you do decide to combine the two documents, you cannot add any more information. The combined form should only contain the disclosure and authorization.

One test for whether the form is FCRA compliant is to check whether each sentence can begin with either “We hereby disclose to you that ...” or “You hereby authorize us to ...”. If not, you may have too much extra information. This might threaten its FCRA compliance. Always consult with legal counsel to prepare forms that align with the letter of the law.

These disclosure and consent forms serve to make a background check FCRA-compliant. These forms also give the background screening company permission to perform the check. They may also serve as verification to former employers or schools that they may share background information.

To better understand why FCRA compliance matters, read this article about enforcement actions in 2023. The Federal Trade Commission found two California companies violated the law. The FTC uncovered “willful” violations of the FCRA and fined the businesses millions of dollars. As we can see, noncompliance can prove costly.

Prepare for FCRA compliance in any check.

These rules don’t just apply to criminal history checks. In any situation where backgroundchecks.com obtains information based on an interview, you must provide additional disclosures. For example, what you must disclose to conduct reference or employment checks.

  1. You must inform the subject that you’re obtaining a consumer report about them. This report may contain information about their character, personal characteristics, or mode of living.

  2. You must inform the subject that they have a right to request a description of the nature and scope of the investigation. If the subject requests that description, you must provide it within five days.

Before the decision

If a background check returns no red flags, the employer may choose to move forward with hiring the subject of that report. In these situations, the employer has no more remaining obligations under the FCRA.

However, what if the employer rescinds a job offer or disqualifies a candidate? If they base the decision on background check findings, additional FCRA requirements apply. In the parlance of the FCRA, this decision is “adverse action.” Employers considering adverse action based on a background check face more FCRA obligations. You must complete these obligations before dismissing an applicant.

The FCRA requires you to send the candidate a “pre-adverse-action notice” before you finalize your decision. The pre-adverse action notice must include a copy of the background report you used. It must also have the Consumer Financial Protection Bureau’s summary of rights.

You must send this pre-adverse notice a “reasonable time” before making the final decision. The FTC states that five business days is a reasonable time to give notice by mail. If that time elapses without a response, you may proceed with the adverse decision.

If the subject disputes the background report, you must halt the hiring process. Under the FCRA, you cannot take final adverse action until after the background check company resolves the dispute.

On hiring decisions

If the subject does not respond, you can officially take action and move forward with the hiring process. Similarly, a dispute may be resolved in your favor. The background check company may rule that the information in the report is accurate. If so, you can formally take the candidate out of employment consideration.

When you take action based on a background check, some other steps are necessary to comply. These steps include the following:

  • Notify the subject of the decision.

  • Provide the background check company’s business name, address, and contact info.

  • Notify the subject that the background check company did not make the decision.

  • Notify the subject that they can request another free copy of their background report. They must request the report from the background check provider within the next 62 days.

  • Notify the subject that they can dispute any inaccurate or incomplete information in the report. To do so, they must contact the background screening agency.

Many states also have extra requirements concerning using a background check company’s services. States such as California require additional notices and steps. Always review the law in your local area before using background checks.

backgroundchecks.com provides forms online and assists you with compliance

At backgroundchecks.com, our customers can access a dedicated compliance area in our web-based order system. The following FCRA compliance support is available through that system:

backgroundchecks.com can help with electronic pre-adverse and adverse action services

If you want us to handle this process, you will only have to provide the applicant’s email address during the order process. The video will give you a quick overview of the process.

FAQs


FCRA compliance refers to steps businesses take to use consumer reports legally. Employers must follow the Fair Credit Reporting Act (FCRA) to the letter. This law includes specific requirements regarding how employers use background checks. Specific sections of the FCRA cover nuanced guidelines for background check disclosure and authorization. This includes what employers must do if they wish to disqualify someone based on their record. Employers should establish written background screening policies that incorporate FCRA requirements.


FCRA stands for “Fair Credit Reporting Act.” Background check rules and credit reporting rules come from this law. It is a federal statute enacted in 1971 that regulates the consumer reporting agency industry and protects consumer privacy. All credit reporting bureaus are subject to the FCRA, including all background check companies.


All employers that wish to use background checks should review the FCRA in detail. Seek guidance on FCRA compliance from an attorney familiar with employment law.


FCRA violations occur when an employer fails to meet the requirements of the law. Most often, this relates to proper disclosure or consent. Ordering a background check without consent would be a violation. Deciding without using the adverse action process is a violation, too.


The FCRA regulates reporting agencies so that they conduct their business in fair, impartial, and respectful ways. The goal is to protect consumer privacy. As a job seeker, the FCRA protects you throughout the background check process. No employer can launch an investigation of your background without first disclosing their intention to do so. They must also obtain your express written consent. Employers in FCRA compliance cannot disqualify you from job consideration without first notifying you and giving you a chance to dispute your background check.

Additional Resources


Why Landlords Use a Social Security Number for Credit Checks

 

While a real estate background check based on an individual's name will help with the safety-related aspects of the tenant selection process, it can't tell you much about their financial capacity. Hence, many landlords require applicants to provide proof of income through official pay stubs or federal tax documents. This step should establish the applicant's ability to pay the rent. However, income alone is not the complete picture—what if all earnings service debt? Potential tenants may not have the amount of available income their pay stubs indicate.

With that in mind, it makes sense for a landlord to check an applicant's credit history before finalizing a rental application. Any landlord who checks credit must follow specific rules while obtaining information from the tenant, including their Social Security number. Why do landlords need to collect such sensitive data during this process? Let's explore the adequate financial vetting of prospective tenants more.

What Information Do You Need to Run a Credit Check?

With the typical background check, you often only need an individual's name and other information about them to search for criminal records. However, a credit check is somewhat different—landlords must collect an applicant's Social Security number to move forward. Some background checks, such as alias verification, already require using an SSN to find matches—but you can't find someone's credit report without their SSN. Why?

Simply put, there is no other way to identify an individual in the United States. Social Security numbers are unique identifiers assigned by the government that individuals possess for their entire life. It is this number that the primary credit reporting agencies use to associate an individual's credit file with their history. Therefore, you must collect an SSN to be sure you've extracted the correct credit file for review. 

Although no federal law requires landlords to obtain an applicant's consent before ordering a credit report, many property managers prefer to do so. Taking care in collecting this information ensures that its purpose—for making a housing-related decision—is clear. To simplify the effort, landlords can disclose their intent to use a credit check and obtain an applicant's consent on their rental application form. 

Why Check a Tenant's Credit? 3 Key Reasons to Know

What makes collecting more personal information from applicants worth the effort? Although an individual's credit report can't tell the whole story, the numbers it contains may illuminate the decision-making process. It could be a clear report, full of red flags, or concerning enough that you require an additional conversation with the applicant. There are three reasons to consider:

  • First, you should be able to see whether a potential tenant has substantial debt. Owing several creditors could indicate financial irresponsibility or less pressing issues. For example, it is ubiquitous for Americans to have considerable medical debts. As of 2023, medical debts in collections worth $500 or less ceased to appear on credit reports.

  • Second, you can see whether an applicant has a good history of making timely payments. Missed and late payments appear on credit reports and can help you better understand whether applicants are trustworthy and honor their financial obligations.

  • Finally, you can see if the individual has any prior evictions in their credit report. Some landlords will choose to steer clear of those with evictions, especially more than one since it could indicate a habitual inability to honor the conditions of rental agreements. If landlords discover evictions on a credit report, they should consider discussing it with the applicant.

Handling Personal Information Vs. Using a Third-Party Service

Demanding Social Security numbers from applicants can make some landlords uncomfortable. Once obtained, you're responsible for protecting and keeping them secure. Exposing SSNs and other personal information can open the door to identity theft and other issues. If you intend to collect SSNs and order reports yourself, develop a policy for storage and handling. You may need to destroy your record of an applicant's SSN rather than keep such information accessible.

Some third-party services will contact your applicant, letting them order their credit report while authorizing you to receive a copy. This streamlined process ensures you don't need to manage SSNs directly. Choosing a partner who understands the importance of security and intelligent handling practices for personal data can make your tenant selection process much more manageable.

Warning Signs on Credit Reports

Once you receive a copy of the credit report, you'll need to know how to analyze it. Reports from the three primary credit reporting bureaus typically include the same information. This data includes open accounts, the maximum credit line, and the amount of credit currently utilized. What are the red flags to look for in this information?

  • A high degree of utilization versus total credit

  • A habit of missing payments

  • Accounts in arrears or sent to collections

  • Evictions

  • Many credit lines

  • Many new credit lines

You should evaluate the report for signs that indicate an applicant may not make sound financial decisions. You should consider this information in concert with the income they report on the rental application. Though most landlords only accept applicants whose take-home pay is three times or more the amount of rent, you should evaluate tenants based on your own risk tolerance. 

Simplifying and Streamlining Your Real Estate Background Check Process

Considering the importance of a credit report to the tenant selection process, it's easy to see that you'll need to build a workflow that nets relevant information without delays. Many landlords, especially those with only one property, may try to handle the process independently. However, it can be time-consuming and frustrating. The solution is to work with a third-party consumer reporting company.

The right partner agency can help you with everything from questions such as "How far back does a real estate background check go?" to concerns about how to keep your vetting process fast to meet deadlines.

 

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