Background check disclosure and authorization form for NEMT drivers: the stand-alone FCRA notice

How to use this form

Federal law asks for two things before you order a background report on someone for a job. One is a clear written notice that a report may be obtained, on a page with nothing else on it. The other is the person’s written authorization, which may be signed on that same page (15 U.S.C. 1681b(b)(2)(A)). Page 1 below is that notice and signature. Pages 2 to 4 sit beside it: a consent for pulling a driving record, the personal details your screening company needs, and the notices a few states and one kind of report add. Use only the pages that apply to you.

The searches and the steps after a report arrives are in the background check guide. The driver application explains why this notice cannot be part of it.

Give the pages to everyone whose report you will order: each applicant, each current driver a screening company will check again, and each owner-operator or volunteer you screen the same way. The FTC’s staff interpretations read “employment purposes” broadly. Their examples include a trucking company that gets reports on owner-operators and a nonprofit staffed in part by volunteers, and they say the disclosure and authorization rules apply even to someone who is not technically an employee. That is a 2011 staff reading and not a court rule, so one set of pages for everyone who drives is the safe way to run it.

In California and New York City, hand the pages out with the conditional offer, not with the application. Both places bar covered employers from a criminal history search before an offer, and the conditional offer letter is the natural place to enclose them.

The form

Page 1: Notice and authorization (nothing else on this page)

Print this page by itself. Remove the bracketed sentence about continuing authorization only if you will never order a report on a driver after hire.

Notice and authorization for consumer reports (employment)

Notice. As part of deciding whether to hire you [or accept you as a volunteer], and later while you work for us, [Company name] may get consumer reports about you for employment purposes. These reports gather background facts from outside sources, such as criminal court records and the record your state keeps of your driving. A company that assembles this kind of information is called a consumer reporting agency.

Authorization. I received this notice. I give [Company name] my written authorization to get these reports on me from [screening company, address, phone] and from any other consumer reporting agency it chooses. [My authorization continues for as long as I work for [Company name], and it covers every report requested during that time.]

Name: ______________________ Signature: ______________________ Date: __________

Page 2: Consent to request my driving record

Use this page when you order a driving record from a state yourself. A record that comes through a screening company falls under page 1. The Driver’s Privacy Protection Act lists the uses for which a state may release a driving record, and one is a requester that holds the written consent of the person the record is about (18 U.S.C. 2721(b)(13)). This page puts that consent in writing.

Consent to request my driving record

I agree that [Company name] may request my driving record from each state that has licensed me [in the past [3] years], either from the state or through [screening company]. I understand [Company name] will use it to decide whether I may drive for it and to look at my record again each year [while I drive for it].

Name: ______________________ Driver’s license number and state: ______________________ Date of birth: ______________________ Signature: ______________________ Date: __________

Page 3: Details for the screening company

Send this page with the order and keep it away from page 1. It carries what a search needs to find the right person, and none of it is part of the notice or the authorization.

Page 4: State and special notices (use only those that apply)

Each notice below goes on its own sheet that travels with page 1. None of this text belongs on page 1.

Minnesota. Minnesota Statutes 13C.02 asks for a written disclosure delivered before the report is obtained and, when you use a written application, included in or accompanying it. The disclosure must carry a box the person may check and return to receive a copy of the report. When the box comes back, you ask the report preparer for a copy, and the preparer has 24 hours from handing the report to you to send it, at no charge. The copy must explain the right to dispute errors. The disclosure must also tell the person they may ask for more information about the nature of the report, which the screening company has to give in writing within five days.

Notice to Minnesota applicants. [Company name] may obtain a consumer report about you for employment purposes. If you want a copy of any consumer report we obtain, check this box and return this sheet. [ ] Yes, send me a copy. The copy comes to you at no charge and explains how to dispute anything in it that is wrong. You may also ask in writing for a description of what the report covers.

Name: ______________________ Signature: ______________________ Date: __________

New York. General Business Law 380-b(b) asks the employer to tell the applicant, in writing or in the way the application is made, that a consumer report may be requested in connection with the application, and that on request the applicant will learn whether one was requested and the name and address of the agency that supplied it. If the notice also says later reports may be requested to update, renew or extend the employment, no new notice is due for those (380-b(c)).

Notice to New York applicants. A consumer report may be requested about you in connection with your application to [Company name]. If you ask, we will tell you whether a report was requested and, if one was, the name and address of the consumer reporting agency that provided it. [We may also request later reports to update, renew or extend your employment.]

Investigative reports. If your screening company will interview former employers, neighbors or other people about a driver’s character, reputation or way of life, the result is an investigative consumer report, and 15 U.S.C. 1681d adds a disclosure of its own. It goes out in writing no later than three days after you first request the report. It says an investigative report may be made, tells the person they may ask for a full description of what the investigation covers, and, by the statute’s wording, includes the written summary of FCRA rights. If the person asks for the description, you answer in writing within five days after the request or the first order, whichever is later.

Notice of investigative consumer report. An investigative consumer report about you may be made. It may include information about your character, general reputation, personal characteristics and mode of living, gathered by interviews with people who know you. You may ask us in writing for a complete description of the nature and scope of the investigation, and we will send it within five days. A written summary of your rights under the Fair Credit Reporting Act is enclosed.

Other states add notices of their own. Ask your state labor department, or the screening company that holds your account, which ones apply where you hire.

What must stay off page 1

The statute names a single exception to a page with nothing else on it, and that is the written authorization. In Syed v. M-I, LLC, the Ninth Circuit read that exception as the only one. It turned down an implied exception for a liability waiver, held that the waiver put the page in violation of the “solely” requirement, and treated the violation as willful. A willful violation exposes the company to damages of $100 to $1,000 for each person affected, punitive damages the court allows, and attorney’s fees (15 U.S.C. 1681n). Syed is a Ninth Circuit decision, but the words it applies are in the federal statute, so build the page to meet them everywhere.

Keep these off page 1:

• A liability waiver or release. This is the exact item in Syed.
• Anything from the application. The FTC says an application cannot hold the notice, and the application is where the applicant’s other statements already sit.
• Offer terms and employment policies. Pay, at-will wording, arbitration and handbook receipts belong in the offer letter and the onboarding packet.
• State notices. Each gets its own sheet from page 4.
• Identifiers. Date of birth, Social Security number and license number go on pages 2 and 3.
• A long legal explanation. The FTC allows small extras, like a line saying what a consumer report is, so long as they do not muddy the notice.

An authorization that covers later checks

If you will rescreen drivers through a screening company, the authorization has to say so. The FTC’s guidance is that an authorization meant to reach reports throughout a person’s employment must state that clearly and conspicuously. The bracketed sentence on page 1 does it, and it sets the period as the time the person works for you, not a number of years.

A driver who signed an older form that mentions only the hiring screen should sign the continuing version before you order a yearly record or switch on alerts from a screening company. The continuous monitoring guide covers the alert programs, and the driving record review form is where each yearly pull gets recorded.

When the summary of rights goes out

Page 1 does not hand over the CFPB’s summary of rights, because the statute places that step elsewhere. The screening company supplies the summary with the report or earlier. You pass it along, with a copy of the report, before any adverse action based on the report (15 U.S.C. 1681b(b)(1) and (b)(3)). Investigative reports are the other place it appears, as page 4 says.

The CFPB publishes a model summary, and the file for the current model is titled March 2023. Appendix K to Regulation V accepts a form that closely follows the model and stays current, and an accurate translation into the person’s own language. The pre-adverse action notice entry shows how the report and the summary go out together.

Keeping and discarding the signed pages

File each signed page in the driver’s file before the first order goes out, so the date on the page is earlier than the date on the report. Keep it for as long as a claim over it could still be filed. The FCRA allows a suit up to five years after the violation, or two years after the person discovers it, whichever comes first (15 U.S.C. 1681p), and the EEOC’s rule asks only a year for hiring records (29 CFR 1602.14). Five years after the last report a page covered is a sensible floor. The driver file checklist shows where the pages go.

The reports themselves fall under the FTC’s disposal rule. When you no longer need one, destroy it with reasonable care: shred paper, and erase electronic files so they cannot practicably be reconstructed (16 CFR 682.3).

After the signature

In HealthRide, a driver’s licenses and certifications sit in the fleet records with the date each one expires, and a reminder goes out before it lapses. Add the license expiration there, and the date the next yearly record is due. A dispatcher who tries to give a trip to a driver with a lapsed credential sees a warning first.