Guide · For employers
FCRA disclosure and authorization: the standalone document rule
Before you order a background check from a screening company, federal law requires two things: a written disclosure in a document of its own, and the person’s written authorization. This guide covers what the disclosure must say, what must stay off it, the exceptions, and the states that add their own rules.
Reviewed
Primary sources
Step 1 of the process
The rule
Two requirements, before you order the report.
The disclosure and authorization form generator writes the whole set for the job’s state, each document on its own page.
You may not get a consumer report for employment purposes unless (15 U.S.C. § 1681b(b)(2)(A)):
- A clear and conspicuous disclosure has been made in writing to the person, before you order the report, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
- The person has authorized the report in writing. The authorization may go on the same document as the disclosure.
The rule applies to applicants and to current employees, whenever you get a report from a consumer reporting agency for employment purposes.
What must stay off the disclosure
The words “consists solely of the disclosure” are the trap.
The statute allows one thing beside the disclosure: the authorization. Anything else on the same document risks the rule. Common problems:
- A release or waiver of liability
- Application questions or other forms
- Long state law notices mixed into the federal disclosure
- Extra legal text about the employer, the screening company or how records are used
Keep the disclosure short and alone, and put everything else in a separate document.
What you certify to the screening company
A consumer reporting agency may furnish a report for employment only if you certify that you complied with the disclosure and authorization rule, that you will follow the adverse action steps if they apply, and that you will not use the report in violation of equal employment opportunity law (15 U.S.C. § 1681b(b)(1)).
Investigative consumer reports
Reports built on interviews about character or reputation.
If the report will include information about the person’s character, general reputation, personal characteristics or mode of living, gathered through interviews, it is an investigative consumer report. You must also disclose that fact in a writing mailed or otherwise delivered to the person no later than three days after you first request the report. The writing must tell the person of the right to ask for more detail about the nature and scope of the investigation (15 U.S.C. § 1681d(a)).
The transportation exception
For a job whose qualifications the U.S. Secretary of Transportation can set, or a job under a state transportation safety agency, when the person has dealt with you only by mail, phone or computer: you may give the notice by oral, written or electronic means, and the person may consent the same way (15 U.S.C. § 1681b(b)(2)(B)-(C)).
States that add disclosure or consent rules
On top of the federal rule. Each state page has the full rule and the law.
| State | What it adds | Law |
|---|---|---|
| California | A clear and conspicuous written disclosure in a document of its own, with the agency’s contact details, the nature and scope of the investigation and a box to request a copy of the report. | Cal. Civ. Code § 1786.16 |
| Massachusetts | Written notice before any report for employment (for employees, a notice in the employee manual is enough). For an investigative report: a written disclosure of its nature and scope, and the person’s written permission. | M.G.L. c. 93 §§ 53, 60 |
| Minnesota | A written disclosure before the report, with a box the person can check to receive a copy. | Minn. Stat. § 13C.02 |
| New Jersey | A standalone written disclosure and written authorization, as under federal law. | N.J.S.A. 56:11-31 |
| New York | Written notice that a report may be requested. For an investigative report, prior notice, written authorization and a copy of Correction Law Article 23-A. | N.Y. Gen. Bus. Law §§ 380-b, 380-c |
| Oklahoma | Written notice that a report will be used, with a box the person can check for a free copy. | 24 O.S. § 148 |
| Vermont | The person’s consent before a report is obtained, used only for the purpose consented to. | 9 V.S.A. § 2480e |
| Washington | A written disclosure, or the applicant’s authorization; current employees must have received written notice that reports may be used. | RCW 19.182.020 |
| Montana | For an investigative report: written notice within 3 days of the request, except for a job the person applied for. | Mont. Code Ann. § 31-3-113 |
| New Hampshire | For an investigative report: written disclosure within 3 days of the request, except for a job the person has not specifically applied for. | RSA 359-B:6 |
No other state adds a disclosure or authorization step to the federal one, as far as our research found. Check the state page for the job’s state before you rely on that.
Questions employers ask
Can the authorization be on the same page as the disclosure?
Yes. The statute allows the person’s authorization on the disclosure document. Nothing else.
Can the disclosure be electronic?
The statute requires a disclosure “in writing.” For jobs covered by the transportation exception, the notice and consent may be oral, written or electronic (§ 1681b(b)(2)(B)).
Does this apply if I check records myself?
The federal rule covers reports from a consumer reporting agency. Some states regulate records you gather yourself; see the state pages.
Sources
- 15 U.S.C. § 1681b(b)(1)-(2), certification, disclosure and authorization
- 15 U.S.C. § 1681d(a), investigative consumer reports
State rules: the sources on each state page.
Last reviewed · General information, not legal advice.