Understanding Certifications in the Background Check Process

When partnering with a consumer reporting agency (CRA), like Checkr, to conduct background checks, you are required to make certain certifications to ensure compliance with the Fair Credit Reporting Act (FCRA) and state laws governing background checks. Among others, these certifications generally include certifying that you (the company ordering the background checks) will:

Customers sometimes have questions about the certifications required by Checkr as part of the report ordering process, or as they appear in Section 3 of our Services Agreement (MSA). In this blog, we’ll explore why these certifications benefit both you (the customer) and Checkr, and how they contribute to a fair and transparent screening process.

The FCRA is a federal law that regulates the collection, dissemination, and use of consumer information, including background checks. Among other things, the FCRA requires consumer reporting agencies (CRA)s, like Checkr, to collect certain certifications from the customer to whom it will be delivering background checks. Certifications are statements that the customer makes, such as a representation that the customer is ordering background checks for the purpose of evaluating potential new hires.

Although the customer is ultimately responsible for properly using and storing the reports and other information it receives from Checkr, the law places responsibility on Checkr to ensure the customer is doing so. These certifications are the means by which Checkr fulfills this obligation, ‌while also helping customers ensure their own legal compliance with the FCRA. 

In addition to the FCRA certifications, customers are also required to make certain state-specific certifications about their use of background check reports. This is because many states have Ban the Box laws or other restrictions, such as industry-specific background check requirements, that may impact the use of background check reports that are different from, or in addition to, FCRA requirements. Customers must make these certifications even if the company is not hiring in the state or the candidate is not currently located there. State laws may apply to the background check report because the candidate once lived there, or pointer searches returned potential records in that state, even if they no longer live there and are not being hired for a role in that state.

Making the required certifications in Checkr’s MSA helps protect customers from potential legal risks. Both Checkr and the customer are required to comply with FCRA and state laws. While Checkr provides features and functionality to assist customers in complying with your legal obligations, it’s ultimately your responsibility to ensure compliance, as the FCRA prohibits using a contract to shift certain responsibilities, such as providing certain disclosures and notices, onto the background check provider. By understanding and complying with the certifications you make in the MSA or as part of the report ordering process, you may be able to mitigate the risk of lawsuits and regulatory penalties. 

The certifications in our MSA also play a role in safeguarding the rights of candidates who undergo background checks. By certifying your compliance with the FCRA and state laws, customers commit to obtaining proper consent from the candidate, providing them with necessary disclosures, and following the appropriate procedures for adverse action. These certifications ensure that candidates are treated fairly throughout the screening process and have the opportunity to address any inaccuracies or disputes that may arise.

At Checkr, we value our partnership with our customers and strive to provide a fair and transparent screening process. The certifications in our MSA are not legal formalities. They are essential components of a compliant screening process, designed to ensure compliance with applicable laws as well as protect the rights of candidates subject to background checks. 

The resources and information provided here are for educational and informational purposes only and do not constitute legal advice. Always consult your own counsel for up-to-date legal advice and guidance related to your practices, needs, and compliance with applicable laws.