| Pre-Employment Background Screening and the Fair Credit Reporting Act ("FCRA") |
Background screening agencies (“consumer reporting agencies” or “CRAs”) and the employers who engage them must comply with the Fair Credit Reporting Act (“FCRA”). The FCRA is intended to ensure that the information contained in a background screening report (“consumer report”) is accurate and up-to-date, and that the user of the employment screening report has a legitimate right to request and view the report (i.e., a “permissible purpose,” such as for pre-employment screening).
| Applicant Notification and Authorization |
The FCRA requires that a job applicant be provided advance notice of a pre-employment background check and that (s)he consent to it.
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Notification – The employer must notify the applicant that a background check might be conducted on him or her. Written notice must be separate and apart from the employer’s employment application. California residents must also be provided a copy of a separate notice. |
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Authorization – Before pre-employment background screening can be initiated, the applicant must sign a release authorizing the background check. |
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Information for Applicants – A copy of the FTC document “A Summary of Your Rights under the FCRA” must be provided to the applicant. This document summarizes the applicant’s rights, including the following: |
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Before information about an applicant can be supplied to an employer, the applicant must provide written consent. |
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The applicant must be told if information in his/her file or report has been used against him/her. |
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The applicant has the right to know and view what is in his/her file. |
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Certain outdated information about the applicant may not be reported. |
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The applicant has the right to dispute incomplete or inaccurate information. |
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Inaccurate, incomplete or unverifiable information in the applicant’s file or report must be corrected or deleted. |
To simplify the background screening process, AccuSearch supplies all of the above-mentioned documents in a single, convenient file. Our Request & Release (PDF) incorporates the applicant notice, authorization, and personal information request into a one-page form (“Release”), and includes California’s notice, along with the FTC’s “Summary of Your Rights” document. AccuSearch’s Release uses broad language that reserves the right for the employer to investigate the applicant’s background at any time in the future, if (s)he becomes, and remains, an employee.
The FCRA requires certain action if, based upon information included in a background screening report, the employer: a) intends not to extend an offer of employment, and; b) ultimately, does not extend an offer.
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Pre-Adverse Action Notice – The applicant must be notified and supplied with a copy of the background screening report, another copy of the FTC’s “Summary of Your
Rights” document, and AccuSearch contact information. |
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Adverse Action Notice – The applicant must be notified and supplied with another copy of the FTC’s “Summary of Your Rights” document and AccuSearch contact information. |
AccuSearch can supply you with sample Pre-Adverse Action and Adverse Action letters.
If an applicant (“consumer”) believes that information contained in the background screening report is wrong, (s)he can inform the employment screening agency, which must then conduct a reinvestigation and if appropriate, remove or correct inaccurate or unverified information and report its findings and action to the applicant. Because public records are subject to human error and are not always up-to-date, errors can sometimes occur.
The FCRA limits the information that background screening agencies may report to their employers. For example, unless the position pays $75,000 or more, the CRA may not report certain records depending upon their disposition date (e.g., civil suits, judgments, and arrests that did not result in convictions, that antedate the report by more than 7 years; and bankruptcies that antedate the report by more than 10 years) or status (e.g., criminal cases that have been sealed or expunged). Some states impose additional restrictions on reporting, and some of those restrictions are salary-dependent. It’s a lot to keep track of, but AccuSearch makes it easy by filtering out records that are not reportable to employers.
Employers may exclude applicants from further consideration based on conviction records if the employer determines that the needs of the business dictate the exclusion. The employer must be able to show that it considered the nature and gravity of the offense, whether it was job-related, when it occurred, and what the applicant has done since.
| Revisit your Employment Application |
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Include in your job application a notification advising applicants that any job offer will be contingent upon a satisfactory pre-employment background check. This might discourage individuals with checkered pasts from even applying. |
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Do not limit questions about criminal history only to felonies. If your state’s laws allow, keep your inquiry broad (e.g., “Have you ever been convicted of any crimes?” or “Are
you a defendant in any pending cases?”). |
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Warn the applicant that if it is determined, at any point in time, that (s)he lied on his/her application or during the interview/hiring process, or omitted a material fact, then the process, or employment, may be terminated. |
Once you’ve established a background screening policy for your organization, follow it closely in order to avoid any appearance of discrimination or preferential treatment. You may vary the scope of your background screens based upon job levels, classifications or departments, but be consistent. Always request the same type of background screen for all employees or candidates within a particular job level, classification or department.
Look for these characteristics and qualities in a background screening agency.
Put us to the test. You’ll soon discover that AccuSearch meets all of the above criteria.
It’s easy to get started with AccuSearch. Just click Open an Account to submit an application. Or click on a link below for more information on popular background screening services such as Criminal Background Checks. Click on FAQs to view answers to some frequently-asked questions about pre-employment screening.
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