Concerned about being FCRA compliant when screening employment applicants?
Let’s start by learning the fundamental objective of the Fair Credit Reporting Act (FCRA).
- Applicant should sign a background check authorization consent authorizing you and a third-party provider that a request for a background check can be made on their behalf. This consent should be separate whether on paper or electronically from employment application form. In other words, do not include it as a clause on your application form.
- All positive criminal database results must be verified at the origin source by ordering a county criminal court search. The key is to get updated conviction and case disposition information.
- If you do not intend to hire the applicant based on the results of the background check report, a pre-adverse action letter must be mailed to the applicant. This letter should include a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” along with a copy of the background report. The intended purpose of this letter is to give the applicant an opportunity to dispute any incorrect information by contacting the background check company (CRA).
- If applicant does not communicate to employer within a reasonable period of time (courts have not yet defined what is considered a reasonable amount of time, estimate 3-5 days) that they intend on disputing incorrect information on their background report with the background check company, then the employer should mail a final adverse action letter acknowledging their final decision on not hiring the applicant. This letter should include a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”.
- Adverse action is a two-step process, and the first step requires that the prospective employer provide notice to the applicant as well as a copy of the background check.
Of further interest…
- To begin with, state laws can fluctuate substantially from state to state. The aforementioned applies only to the FCRA.
- A criminal record should not be an automatic rejection of the employment applicant. Employers must ensure that they are following the appropriate steps when making a hiring decision.
- Abide by the standards of the Equal Employment Opportunity (EEOC) Consideration of Arrest and Conviction Records in Employment Decisions when evaluating convictions. Avoid consideration of arrest records that did not result in a conviction. Do not give consideration to sealed, expunged, dismissed, found not guilty convictions or for that matter, misdemeanor convictions that do not carry jail sentences.
- When using criminal records to make hiring decisions, employers should always consider the nature of the job, the nature of the offense and how it relates to that job, and how much time has passed since the conviction.
- Relying solely on a multi-jurisdictional criminal database should only be used for non-FCRA cases (private, personal use) such as searching on your daughter’s new boyfriend, an online date and so forth.
What to know when looking for a job
Questions About Your Background
An employer may ask you for all sorts of information about your background, especially during the hiring process. For example, some employers may ask about your employment history, your education, your criminal record, your financial history, your medical history, or your use of online social media.
It’s legal for employers to ask questions about your background or to require a background check — with certain exceptions. They’re not permitted to ask you for medical information until they offer you a job, and they’re not allowed to ask for your genetic information, including your family medical history, except in limited circumstances.
When an employer asks about your background, they must treat you the same as anyone else, regardless of your race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age, if you’re 40 or older. An employer isn’t allowed to ask for extra background information because you are, say, of a certain race or ethnicity.
Ban the Box
In a movement gaining steam across the country to help ex-convicts find employment, “Ban the Box” prevents businesses from asking about arrests and criminal records in the first stage of a job application. This gives applicants with a not so perfect criminal past, a fair opportunity to demonstrate their skills rather than be automatically disqualified. Find out which states or cities have adopted “Ban the Box“.