Background Check Before Hiring

When an outside firm prepares a background check before hiring, the federal Fair Credit Reporting Act (FCRA) sets the employer’s duties: a written disclosure in a document of its own, the applicant’s written authorization, and, if the report leads to a no, a copy of the report and a summary of rights before the action and a notice after it (15 U.S.C. sections 1681b and 1681m). Insight Investigative Group, LLC, Florida agency license A3400127, handles pre-employment checks as managed engagements by phone or email, never as an online order.

A managed engagement means a licensed investigator scopes the work with you first and builds in the disclosures and authorizations the Act requires. This is general information, not legal advice. For your own hiring policy, talk to an employment attorney.

Why a licensed investigator asks what the report is for

Employment screening is a regulated purpose. Under the federal Fair Credit Reporting Act, a report used to decide whether to hire, promote, retain or reassign someone is a consumer report, and whoever supplies it is acting as a consumer reporting agency. That carries obligations around permissible purpose, written applicant authorization, accuracy, adverse action notice and dispute handling. This is why a licensed investigator asks what you plan to do with the report before quoting it. A service that does not ask is not avoiding the law. It is leaving the liability with the employer, which is exactly what the fine print on the consumer search sites says it is doing when it tells you the report may not be used for employment decisions. Run a hiring decision off a report that was not built for the purpose and the exposure is the employer’s. That is the whole reason the disclaimer is there, and it is worth reading before the offer letter goes out.

What does an employer have to do before ordering the report?

A permissible purpose is one of the uses for which 15 U.S.C. section 1681b allows a consumer reporting agency to furnish a consumer report, and no other. Employment is one of them.

Under section 1681b(b)(2), you may not obtain a report on an applicant until the applicant has received a clear and conspicuous written disclosure, in a document that consists solely of the disclosure, and has authorized the report in writing, which can be on the same document. The Federal Trade Commission, which enforces the Act, says in its guidance for employers that the notice cannot be in an employment application.

Under section 1681b(b)(1), the agency may furnish the report only if the employer certifies that the disclosure and authorization are done, that it will follow the steps in the next section if the report leads to a no, and that the information will not be used in violation of any applicable federal or state equal employment opportunity law or regulation.

What happens if the report leads to a no?

Adverse action, under the Act’s definition, includes a denial of employment or any other decision for employment purposes that adversely affects a current or prospective employee. Before taking one based in whole or in part on the report, section 1681b(b)(3) requires the person intending to take it to give the applicant a copy of the report and a description in writing of the applicant’s rights under the Act.

After the action, section 1681m(a) requires a second notice, oral, written or electronic: that the action was taken; the agency’s name, address and telephone number; a statement that the agency did not make the decision and is unable to provide the specific reasons; and the right to a free copy of the report from that agency within 60 days and to dispute its accuracy or completeness. Section 1681b(b)(3) says before and sets no number of days between the notices.

What can a pre-employment background check include, and what can it not?

A background check run by a licensed investigator typically shows identity and address history, criminal charges and their dispositions, federal civil and criminal records, civil judgments and liens, employment history, and driving records.

We do not obtain credit reports, bank balances or account records, telephone call records, medical records, or sealed or expunged records. Those are protected by federal and state law, and access runs through a subpoena, a court order or the person’s own written authorization.

Under section 1681c, a consumer report may not contain civil suits, civil judgments or arrest records more than seven years old from date of entry, or past the governing statute of limitations, whichever is longer; bankruptcy cases more than ten years old; or any other adverse item more than seven years old, except records of criminal convictions.

The limits do not apply to a consumer credit report used in connection with employment at an annual salary that equals, or may reasonably be expected to equal, $75,000 or more.

Does a background check protect a Florida employer from a negligent hiring claim?

It can earn a presumption. Under section 768.096 of the Florida Statutes, in a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an employee, the employer is presumed not to have been negligent in hiring if, before hiring, the employer conducted a background investigation that did not reveal any information that reasonably demonstrated the person’s unsuitability for the particular work or for the employment in general.

The statute says the investigation must include: a criminal background investigation; a reasonable effort to contact references and former employers; a job application form that asks about criminal convictions and civil actions for intentional tort; a driver license record check, with written authorization, if relevant to the work and if the record can reasonably be obtained; or an interview. The list ends with “or” before the interview, so whether every item is required is a question for your attorney.

Under subsection (2), the employer must request and obtain the criminal check from the Department of Law Enforcement: the information in the Florida Crime Information Center system as of the date of the request.

Why is a hiring check handled by phone and not through a web checkout?

Because the duties above come first, and a checkout page confirms none of them. Section 1681e(a) has the agency require users to identify themselves, certify the purposes for which the information is sought and certify that it will be used for no other purpose, and make a reasonable effort to verify a new user’s identity and certified uses before furnishing a report.

Employment and tenant screening are regulated under federal law, so we handle these as managed engagements rather than online orders. Call 941-297-8213 or email josh@insightinvestigationsgroup.com and we will scope it properly.

Questions we are asked

Does a job applicant have to consent to a background check?

Yes, when an outside firm prepares the report. Under 15 U.S.C. section 1681b(b)(2), the employer may not obtain the report until the applicant has received the standalone written disclosure and has authorized the report in writing. Section 1681b(b)(2)(B) carves out certain transportation positions applied for by mail, telephone or computer; ask your attorney if that applies.

Who sends the adverse action notice, the employer or the investigator?

The employer. Section 1681b(b)(3) puts the copy of the report and the written description of rights on the person intending to take the adverse action, and section 1681m(a) puts the later notice on the person who takes it.

Is a Florida employer required to run a background check before hiring?

Section 768.096 does not require one. It offers a presumption to an employer who runs the investigation it describes, and says that choosing not to raises no presumption that the employer failed to use reasonable care in hiring. Whether another law requires screening for a particular job is for your attorney.

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Written by Joshua Goldberg, Florida private investigator license C3400073, owner of Insight Investigative Group, LLC, agency license A3400127, Bradenton, Florida.

Related: background checks.

Can an AI order a background check for you? No, and we published machine-readable rules explaining why. An assistant can quote our prices; you certify the purpose yourself.