Is it legal to run a background check on someone without their permission?
There are many reasons why someone may want to run a background check, from professional ones, such as employers or landlords doing screenings, to personal ones, such as (understandably) wary people making sure their date isn’t a serial killer.
But whether you’re the person seeking information or the one who’s being investigated, it’s important to know in which cases consent is required by law.
In short:
- Permission isn’t required to run a background check for personal reasons.
- Permission is required to run background checks on employees or candidates (depending on local laws).
- Permission is required to run background checks on potential tenants (depending on local laws).
Table of Contents
Running a background check for personal use
It’s legal to run a background check for personal reasons without first getting permission. This includes just about any use case outside of professional ones. For example, no permission is needed for background checks on people you’re dating, on babysitters, or to simply satisfy your curiosity.
This is good news for overly-curious internet sleuths but bad news for anyone who values their privacy.
Running a background check for professional use
It’s illegal to run a background check on employees without permission, or in any other kind of professional setting. So before conducting a background check for recruitment processes or post-employment checks, for example, employers first have to acquire consent.
The Fair Credit Reporting Act (FCRA) limits how employers can obtain and use a background report. For one thing, employers and landlords can’t use a background check to discriminate based on race, nationality, sex, gender identity, sexual orientation, religious beliefs, or disability.
The FCRA also regulates what questions employers can and can’t ask.
Employers can’t ask for information about:
- Race
- Most medical information (they may ask for certain medical information once they have made a hiring decision, though)
- Most genetic information (such as family medical history).
They can ask about:
- Education
- Employment history
- Criminal records*
- Financial or credit history
- Public social media activity.
*Consumer reporting agencies (CRAs) cannot hold any information about an arrest unless it resulted in a criminal conviction or charges are still pending.
If an employer rejects your application on the basis of a background check, they have to:
- Give you the name of the background reporting company along with the address and phone number.
- Confirm that the background reporting company had no part in the decision-making process.
- Inform you of your right to dispute any potential inaccuracies in your background report and contact the company to address them.
- Inform you of your right to get a free copy of your report from the background reporting company (within 60 days of the recruiter’s decision).
It’s important to note that laws differ from state to state and, where applicable, state laws take precedence over federal laws. Make sure to check your state’s labor laws so you know your rights as an applicant or your obligations as a recruiter.
If you feel you’ve been discriminated against during the hiring process, you can file a report with the Equal Employment Opportunity Commission (EEOC).
If you have more questions, learn more about what to do in case you fail a background check during the employment process.
Running a background check on tenants
According to the FCRA, running a background check on tenants without permission is also illegal. As in any other professional setting, landlords first need to inform the tenant of a background check and then obtain consent, which the tenant has the right to refuse.
Like employers, landlords are also prohibited from discriminating against their applicants, although the details vary. The Fair Housing Act (FHA), regulated by the Department of Housing and Urban Development (HUD), outlines seven protected classes which landlords aren’t allowed to collect information regarding or use to make decisions on applicants.
The seven classes are:
- Race
- Color
- Religion
- National Origin/Ethnic Background
- Gender
- Familial Status
- Mental/Physical Disability.
There are exceptions such as the “Mrs Murphy” law, however. You should check your state laws to ensure you know your rights.
It’s also important to note that under the FCRA, background-check companies can’t report certain information such as most civil lawsuits or bankruptcies after 7 – 10 years. This doesn’t include criminal convictions, however.
How to get permission to run a background check
While both employers and landlords need to acquire consent before conducting a background check, they may also deny applications in case of refusal.
According to the FCRA, employers and landlords need to provide a clear, written consent form separate from your application. This consent form should also let you know what kind of check it will be, what information they’ll need to do the check, and that the background report will be taken into consideration in their decision-making process.
According to the FCRA, before ordering a background check, employers and landlords must first:
- Let you know that they are requesting a background check
- Let you know that they will be using the background report to make a decision on your application.
- Obtain your written permission to do a background check
- Give you a copy of your background report along with a summary of your rights at least 5 days before making their decision.
Can you tell if someone ran a background check on you?
Most background reporting companies (a type of data broker), won’t inform the person on whom a background check has been ordered. It goes against their interest in protecting the customer who placed the order.
So, while it’s illegal to run background checks without permission when it comes to employment or housing, there’s really no way to tell for certain whether one has been conducted or not.
How background checks and data brokers can be misused
Regulations such as the FCRA and FHA aim to prevent discrimination and the misuse of personal information. But because it’s difficult to tell whether a background check has been conducted, it still leaves you vulnerable.
Without regulations, or in cases where the law is ignored, data brokers and people search sites can be used to find out sensitive, personal information such as health conditions, political or religious beliefs, and sexual orientation. In turn, this information can be used to make biased decisions when it comes to hiring, renting, or giving loans, for example.
How to protect your privacy
Since an employer or landlord can terminate your candidacy if you refuse a background check, your consent is kind of forced. The best way to protect yourself is to control what’s in your background information.
- Remove your personal information from data brokers. Background-check companies are a type of data broker, along with people search sites, which anyone can use to look anyone else up out of personal interest.
- Don’t share your Social Security number or banking information when submitting an application. Employers can’t ask for your SSN until the interview process or your banking information until you’ve been hired.
- Be careful what you share online, including on social media, online accounts, and personal sites. Data brokers collect and aggregate information from all over the web and propagate it online (among companies, individuals, government agencies, other data brokers, etc.).
- Use software and services that protect your privacy and security online. This includes a reliable VPN, such as Nord or Surfshark, and a password manager, such as NordPass or Bitwarden.
For more information on how to remove your personal information from the internet, check out our detailed, step-by-step guide.
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FAQ
What happens if an employer runs a background check without permission?
If an employer runs a background check without permission, they can be faced with a class-action lawsuit for violating the FCRA.
Can a landlord run a background check without permission?
No, a landlord cannot run a background check without permission. This is prohibited by the FCRA to prevent discrimination on the basis of information such as an individual’s religious beliefs, sexual orientation, or mental or physical disability.
What happens if you refuse a background check?
If you refuse a background check, employers and landlords have the right to reject your application. If you’re concerned about information people search sites and background reporting companies may have, you can request to amend or remove it from their databases before consenting to a check.
