When an individual is searching for a job, applying for professional licensure, or applying for an apartment, mortgage, or another type of loan, a background check is inevitable and often leads to the question, “Can someone run a background check without my permission?”
Or, “is it legal to run a background check on anyone without their consent?”
There’s clear differences between the legalities of professional background checks and personal background checks so it is important for people to know their rights when it comes to their personal public records, and what actions can be taken if the background check was performed illegally.
Is Permission Needed for Someone To Legally Run a Background Check on You?
There are some circumstances where consent is not required by law such as personal background checks since they’re a compilation of public records. You can even learn how to find someone’s middle name or who lives here/anywhere using various government databases or even check a persons record if you please.
But for the most part, getting permission is a necessary step before looking into someone’s past through public records. So in professional settings, consent of the subject is required before a background check can be conducted due to the Fair Credit Reporting Act (FCRA).
Is it Illegal an Employer or Landlord to Conduct an Unauthorized Background Check Without Your Consent?
Can an employer conduct a background check without the subject’s consent? What about a landlord? Who protects the subject from unfair practices regarding background checks?
Employers and landlords must obtain written consent of the subject before running bulk background checks or any other screenings on tenants, and the subject must be informed of the extent of the search and how the information will be used as discussed further below.
When Consent is Required by the Fair Credit Reporting Act (FCRA)
Background checks for commercial-related endeavors also referred to as non-personal background checks, are regulated and governed by the Fair Credit Reporting Act (FCRA) initially enacted in 1970 and enforced by the United States Federal Trade Commission (FTC).
The FTC provides guidance to consumer and professional agencies regarding background check compliance. The FTC protects the rights of citizens and educates them on these rights. Here an individual can answer, “Can someone run a background check without my permission?”
Obtaining and utilizing a non-person background report is permissible in several situations. The FTC breaks it down into six categories as follows:
| Category |
Type Reports |
| Court Ordered |
Per a subpoena issued by a Federal grand jury or per a court order with jurisdiction to issue the order. |
| Written Instructions |
Under certain circumstances where the subject has been given written instruction on the background check. |
| Reasonable Processing When the Subject is |
- Applying for credit/credit transaction
- Candidate for employment
- For Insurance underwriting
- Determining licensing eligibility
- Considering financial status for government benefit as required by law
- Credit assessment for a potential investor
- Otherwise legitimate business need
- Executive department/agencies in issuance of individual travel charge cards that are sponsored by the government but billed to the subject
|
| Child Support |
- Establish person’s ability to pay child support
- Establish parentage of person related to child
- To the agency administering the child support or modifying an existing child support obligation.
|
| FDIC (Federal Deposit Insurance Corporation) |
Used for purposes of appointing executor or liquidator of insured bank or credit union.1 |
The FTC also enforces the FCRA guidelines on when and how information under the above circumstance can be used. Written permission to conduct a background check for employment, leasing, and credit checks is not only best practice, it is a requirement per the FCRA and employees should know their rights surrounding these stipulations.
Keeping in compliance with FCRA guidelines protects the subject and the agency. Details on the types of checks will be provided later in this article.
It is not illegal for friends, family, or someone a person is dating to perform a background check without the subject’s permission since these types of reports are considered personal, not professional or commercial reports, and the rules and regulations regarding consent do not apply.
There are several third-party websites dedicated to personal background checks and these sites must inform users they are not considered consumer reporting agencies as outlined by the FCRA. When a potential employer or landlord sees this disclaimer, they know information gathered from this site cannot be used for commercial use.
Personal background checks are used for a variety of reasons, mainly to check the background of potential romantic interest, a marriage background check, or to locate family or friends a person hasn’t seen in a while, not for purposes of extended employment, easing property, obtaining a license or a gun; therefore, the same rules do not apply.
Ultimately, personal information found on personal background checks comes from public records, which are accessible to anyone – so permission is not required.
Is it Possible to Run a Background Check on Someone Without Them Knowing?
It is possible to run a background check without the subject knowing; however, if the background check is going to be conducted by a potential employer, landlord, or other consumer agency, it is illegal and unethical to run a check without the party’s consent and knowledge.
Perhaps the individual has asked, “How do I know if someone is checking my background?” Information gathered in a non-personal background check must be disclosed to the subject and any action taken based on that information must also be provided to the subject, and all disclosure must be made in writing.1
On the other hand, personal background checks are run without the subject’s knowledge, and searchers must certify they are not using the information for the purpose of extending credit, leasing property, or making a determination for employment with the third-party company that provides the information.
Various Types of Background Checks & Whether or Not They Require Someone’s Explicit Consent
There are several different types of background checks. The information returned depends on the type the searcher conducts.
| Type Check |
How it is Used and/or Information included |
Is Consent Required? |
Additional Information |
| Level 1 Check (Personal Background Check) |
Typically a name-only check |
Consent is only required when the background check is being obtained for non-personal reasons (such as employment offer, extending credit, or for tenant screening). |
Anyone can conduct this type check. Florida is the only state that has specific language in its statutes breaking down background checks by level for non-personal use.2 |
| Level 2 Check |
More extensive than a name-only search. Can include other personally identifying information (PII) such as social security number, date of birth, address, or other information. This sometimes includes fingerprint searches for local, state or federal law enforcement records. |
Consent of the subject is required to conduct a level 2 search. |
Florida is the only state that has specific language in its statutes breaking down background checks by level for non-personal use.2 |
| Employment Purposes |
Employers must comply will all laws regarding preventing discrimination as outlined by the Equal Employment Opportunity Commission. |
Subjects have to consent to a background check in writing. Use of an investigative report (interviews with persons regarding the general character of the subject) must be disclosed to the applicant including the extent/nature of the interviews. |
Applicants must be informed in writing if a background check will be conducted and how the information will be used to determine employment eligibility. When using a third-party agency to conduct the check, provide documentation of subject’s consent, agency compliance with FCRA requirements, and certification information will not be used to discriminate against applicants.1 |
| Tenant Screening |
Landlords must have a permissible purpose for running a background check (such as receipt of an application for a rental property).
Reports can include criminal history, credit report and rental history. |
Obtaining written consent can establish this permissible purpose. Subjects must be provided information on the FCRA and the rights of subjects must be honored. |
Must certify to the third party running the check that it will only be used for housing purposes. When adverse action is taken, the subject must be notified either orally, in writing, or via electronic means (email/text).Once the purpose of the report has been satisfied it must be immediately destroyed.1 |
In addition, there is a level 3 and level 4 background check on top of a few others, but the only background check that does not require consent or permission is a personal background check.
What to Do if Someone Runs a Background Check on You Without Consent or Permission
When thinking about the question, “Can someone run a background check without my permission,” what can a person do when they learn someone has conducted an illegal search? What constitutes an illegal background check?
Non-consumer reporting agency companies cannot provide background reports other than those for personal use and individuals can run background checks on themselves to see what may be returned that could be used by employers or landlords, but these reports cannot be used by the commercial entity.
Suggested Reading: How long does Walmart background check take?
Additionally, employers, landlords, licensing boards, and others who conduct background checks for commercial reasons cannot conduct background checks without full disclosure of what will be checked, how it will be used, the results of the check, and actions are taken based on the information in the report.
Agencies & Actions to Take if a Professional Background Check is Ran Without Permission
There are two main agencies that deal with background check fraud: the Federal Trade Commission (FTC) and the US Equal Employment Opportunity Commission (EEOC).
If an employer, landlord, or agency is using a background check as part of the screening process, they must adhere to the rules and regulations outlined in the FCRA. When someone learns an unauthorized background check has been conducted, they have the option to file a formal complaint as outlined below.
When employers or landlords obtain a background check without the consent of the subject, the subject can report the violation to the FTC. Additionally, if the subject is denied the position or rental property and is not provided with the required notices, the subject can make a report using the FTC Fraud portal.3
When a candidate is unlawfully denied employment due to a background check or denied a rental based on discrimination (for example, background checks are used to eliminate candidates with certain criminal convictions that significantly negatively impact a specific protected class) a report can be made to the US EEOC by calling 1-800-669-4000 or 1-800-669-6820 (TTY). Discrimination reports can also be made online at Equal Employment Opportunity Commisison.4
Candidates who feel they have been unfairly or illegally treated due to a background check, or discover an unlawful background check was conducted, can also hire a private attorney specializing in employment law to seek relief.
Running background checks may be a common occurrence in today’s world, but there are rules enforced by the FTC that outlines the information gathered, who can access data, and how that data is used. So to answer the burning question of, “Can someone run a background check without my permission?” – the answer is no if it’s for professional purposes, and yes if it’s a personal background check.
FAQ About Can Someone Run a Background Check Without My Permission?
