“To avoid employee problems, avoid problem employees,” says attorney Lester Rosen. That means background checks, and that means engaging in the delicate dance of FCRA.
FCRA (Fair Credit Reporting Act) is a bit of a misnomer, says Rosen, because it’s not limited to credit reports—it also covers other information employers want, including public records, employment, criminal records, sex offender registration, driving, and more.
It’s easiest to think of FCRA compliance as having four steps, says Rosen, who is CEO of Employment Screening Resources in Novato, California. He offered his four steps at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.
Step 1: Employer Certifications
Prior to providing a consumer report, employers must first certify to the CRA, in writing, that they will follow the FCRA rules concerning disclosure, authorization, notice and adverse action notices, and that they will not use information in violation of any state/federal discrimination law.
Typically, the CRA will provide such a form to the employer, Rosen notes.
Step 2: Disclosure and Authorization
Before obtaining any type of consumer report, an employer must:
- Make a clear and conspicuous disclaimer to an individual, in writing, in a standalone document (not as part of the employment application), that a consumer report may be obtained for employment purposes.
- Obtain the individual’s signed authorization to obtain the report.
You can combine the disclosure and the request for authorization, but you cannot put excessive language on the form that detracts from the clear meaning.
Unlimited employee HR training—one low cost—no setup, no software to install. Find out why the Software & Information Industry Association just voted the BLR Employee Training Center the “Best Workforce Training Solution.” Go here for more information or to sign up.
Prior to actually obtaining an investigative consumer report, and in addition to the requirements listed above, an employer must clearly and accurately disclose to an individual that the report may include in-depth information about his or her character, general reputation, personal characteristics, mode of living, criminal, driving and work history, etc.
This disclosure must:
- Be in writing,
- Be mailed or otherwise delivered to the individual no later than 3 days after the report was first requested, and
- Include a statement informing the individual of his or her right to request additional disclosures and to receive a written summary of legal rights.
If an individual does request additional information, an employer must mail or otherwise provide the information within 5 days of receipt of the written request, or the request date of the report, whichever is later.
Step 3: Adverse Action Letters
Prior to taking adverse action based in whole or in part on a Consumer Report, employers must provide applicants with copies of the report and a Summary of Rights.
- Employers must give the consumer (applicant) the same report the employer receives, whether written or oral.
- FCRA is silent on how long the employer must wait to raise an objection, but the best practice is to give the applicant a meaningful opportunity to review, reflect and object.
No time to prepare or deliver training? With the BLR® Employee Training Center, your employees can start taking essential training courses the same day you sign up. Workers (and supervisors) train at their convenience, 24/7. We track, and you save with this turnkey solution. Yes, it really can be this simple. Learn more.
You can’t “just say no,” on the basis of the report, Rosen says, because of the many possibilities of mistakes. For example:
- Stolen identity
- Mistaken identity
- The person didn’t know about the negative record and thus no chance to correct it
- The record is wrong
- There is confusion about the record
However, says Rosen, in the real world, it’s rare for people to object, and rarer still that they are right.
If the adverse action becomes final, a second letter is required under FCRA Section 615; This letter must provide, orally, in writing, or electronically, the following:
- Notice of the adverse action
- The name, address, and telephone number of the consumer reporting agency that provided the consumer report
- A statement that the consumer reporting agency did not make the adverse decision and cannot provide the individual with the specific reasons supporting the action
- Notice of the individual’s right to obtain a free copy of the consumer report (if the report is requested within 60 days of receiving notice of an adverse action, a consumer reporting agency must provide the report free of charge) and
- Notice of the individual’s right to dispute the accuracy or completeness of the information contained in the report.
In tomorrow’s Advisor, Rosen’s next steps, plus an introduction to the “Best Workforce Training Solution.”