If you’re like most employers that do background checks, you probably haven’t thought twice about the documentation you use for it.

Perhaps you’ve copied some standard language you’ve found off the Internet (not that there is anything necessarily wrong with that), or maybe you’ve just used a form that has been handed down from one HR person to another.

A new lawsuit and a new strategic focus by the Federal Trade Commission and Equal Employment Opportunity Commission should give most employers pause on the forms that they use for background checks and the background check process itself.  This is true not only for the printed forms, but also the online forms that employers have started to use with regularity.

First off, Whole Foods was recently sued by an applicant who charged that the company’s online form seeking job applicants’ approval for criminal background check violates the Fair Credit Reporting Act.

As noted by Judy Greenwald from Business Insurance:

According to the lawsuit filed Friday in U.S. District Court in Oakland, Calif., in Esayas Gezahegne v. Whole Foods Market California Inc., the language in the authorization includes a waiver of claims against those who obtain a consumer reports, in violation of the FCRA. Consumer reports include criminal background checks, credit checks and other similar reports.  …

The online authorization forms all contained language releasing those who obtained the consumer reports from all liability, in violation of the FCRA’ s requirement that the authorizations be pristine documents that contain nothing other than the required disclosures and the requested authorization. In other words, defendant’s authorization forms were facially invalid,” the lawsuit states.

While it’s still early to draw conclusions from the lawsuit itself, the takeaway is that employers should consider having their disclosure contain only the disclosure.  Adding release language to it may be troubling to some courts.

I’ve discussed this in more detail in a client alert that we recently issued.

Second, this week the Federal Trade Commission and the EEOC released new guidance this week on employment background checks that again highlight the renewed focus these agencies have placed on the topic.

The press release states:

Hiring decisions are among the most important choices for any employer, but the process can be complex. For the first time, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have co-published two short guides on employment background checks that explain the rights and responsibilities of the people on both sides of the desk.

The FTC and the EEOC want employers to know that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Employers also should know that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

At the same time, the agencies want job applicants to know that it’s not illegal for potential employers to ask someone about their background as long as the employer does not unlawfully discriminate. Job applicants also should know that if they’ve been turned down for a job or denied a promotion based on information in a background report, they have a right to review the report for accuracy.

With agencies and attorneys looking more closely at background checks, now is the right time to double check the forms you use — particularly if you haven’t looked at them in a while.