In recent years, there has been a surge in class action lawsuits against employers and their consumer reporting agencies (CRAs) for failing to follow proper procedures during the pre-hiring process. These lawsuits often stem from technical mistakes and the financial and reputational risks to employers can be significant.

Ensuring compliance with the correct forms and processes is essential to protect both your organization and your candidates. Below is a practical checklist to help employers stay aligned with key requirements:

Pre-Employment Forms and Compliance Checklist

  1. Disclosure Form
  • Must be a standalone document, separate from any application or other form.
  • Should include the required federal and state-specific language only.
  • Any state disclosures need to also be on their own separate form.
  • Avoid any “extraneous” or additional language that could invalidate the form.
  • Do not staple or bleed this form into the job application.
  1. Authorization Form
  • Must also be separate from other forms.
  • Candidates must sign this form before any background check is conducted.
  • Include only the required state and federal consent language, nothing more.
  • Any additional state authorization needs to be on their own separate form.
  1. Summary of Rights Document
  • Always provide the most current version, as this document is periodically updated by regulators.
  • Employers can access the latest version online or through their background screening partner.
  1. State- and City-Specific Forms
  • Certain states (such as California and New York) and municipalities (such as San Francisco) require additional disclosures and forms.
  • Employers must be aware of these local obligations and provide them to affected candidates.
  • Speak with your legal counsel about additional state/municipal forms that may be needed
  1. Evergreen Law Considerations
  • In states such as California, evergreen restrictions mean employers should obtain new disclosure and authorization forms each time a rescreening is conducted during employment.
  • Review this carefully with legal counsel to avoid compliance gaps.

Important Distinction: Consumer vs. Investigative Reports

Employers must recognize the difference between consumer reports (such as criminal history checks) and investigative consumer reports (such as employment or reference verifications). Each type requires separate forms and distinct notices to candidates. Using the wrong form—or combining them—can create unnecessary liability.

Final Takeaway

Compliance in the hiring process goes beyond simply “checking the box.” Employers should:

  • Work closely with legal counsel to confirm forms and processes are correct.
  • Take a conservative approach to reducing risks.
  • Stay mindful of related laws such as Ban the Box, Fair Chance, and Clean Slate legislation, which add additional obligations in certain jurisdictions.

This guide is intended as a basic framework, but only tailored legal advice can ensure your specific process meets all applicable requirements. Getting the forms and steps right from the start is the simplest way to reduce risk and maintain fair, compliant hiring practices.

Posted by: Rudy Troisi, L.P.I., Founder, CEO, Reliable Background Screening and Dr. Alan Lasky, SVP Client Success & Partnerships.

This content is for informational purposes only and not legal advice or binding case law. Consult qualified legal counsel for assistance.

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