Jacqueline McClure, Genesis Background Screening Services
When even the big companies are dealing with litigation over FCRA compliance, what’s a small to medium company to do? If corporations with lots of resources can’t get it right, is all hope lost?
Actually, it may be easier for small companies to adjust. Large companies have lots of layers and departments which make it a challenge to make sure everyone is on board with the changes and that they follow through consistently. Most of the lawsuits come down to a few issues: using outdated, noncompliant consent forms for background checks and failure to follow the correct process for adverse action. It doesn’t have to be impossible to comply with FCRA requirements for Consent Forms and Adverse Action Process.
Before running a background check, be sure to do the following 3 things:
- Always, always, always get consent. Never run a background check without the applicant’s signed authorization. Keep the consent form (disclosure and authorization) as just that – don’t put any other topics or information on that form
- Do not put a liability release within your consent form
- Keep any state law forms separate from federal law forms as any descriptions of laws or disclosure for consumers will be different depending on whether they are state or federal
Did you decide not to hire based on what you learned from a background check? The FCRA mandates a process for Adverse Action. Get it right to avoid litigation and stay in compliance with these 3 steps:
- Start with a Pre-Adverse Action Notice to inform the applicant that you are reviewing results. It is required that you include a copy of the background report and a Summary of Your Rights Under the Fair Credit Reporting Act with the Pre-Adverse Action Notice.
- Whether you send the Pre-Adverse Action Notice electronically or by mail, provide five business days before you take further action. It is important to give the candidate an opportunity to question anything that is not accurate in the reports. If your delivery is electronic, you will have the timestamp. For mail delivery, it is safest to send by a method that gives you documentation of mailing time and tracking. Keep a record to make sure your timing is spot on for these notifications
- After five business days, the next step is to make your final decision and send the candidate a Post-Adverse Action Notice that includes:
- A statement that says an adverse decision has been determined
- Information that identifies the CRA that performed the background check
- Confirmation that the CRA is not the decision maker and is not capable of explaining any adverse action
- Information for the candidate to obtain a free copy of the background report that resulted in the post-adverse action within 60 days. This information needs to also include a statement on the applicant’s right to dispute any information in the background report that may be inaccurate or incomplete.
- Keep a record to make sure your timing is correct for these notifications
Stay on top of the constant changes in laws and regulations with these 3 steps:
- Pay attention to industry news and/or join industry organizations that have online resources
- Review your forms frequently and update them as necessary-if in doubt, check with your attorney
- Work with an experienced CRA for your background screening to stay in compliance
Partnering with a CRA (Consumer Reporting Agency) that has the services you need to fill in your HR gaps can be a very economical solution. The right partner can help you recruit, integrate your system, perform background screening, provide education and license verification, drug testing at convenient locations, and support throughout the process. Not only can you feel confident that you are bringing the best hire into your company, but you will know that you have done due diligence both legally and ethically for your employees and customers. In addition to accomplishing this at a price that fits your budget, a professional CRA partner pays for itself by avoiding costly hiring mistakes. For more information, contact Genesis Background Screening Services at 866 944-0041 ext 101, email getstarted@gbsspro.com or visit www.gbsspro.com
Genesis Background Screening is not a law firm and provides our blogs for informational purposes only. These blogs should not be considered as a substitute for experienced legal advice. Any laws or regulations mentioned in our blogs need to be researched by your company and any questions you have need to be answered by your legal counsel to be sure your organization is within the law and compliant with regulations.
