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There are numerous legal considerations that should be taken into account when implementing background employment screening as part of your hiring policies. The Federal Credit Reporting Act (FCRA), state statutes, reporting guidelines and applicant disclosures all must be adhered to as part of the process. It's critical to follow these procedures as you don’t want to find yourself in legal troubles.
The FCRA sets forth the guidelines for background investigation companies also known as Consumer Reporting Agencies. Essentially it protects the consumers' right to privacy and fairness when preparing consumer reports on individuals.
State statutes: States often set their own rules pertaining to the use and dissemination of consumer information. What may be allowed as a reportable offense in one state may not be legal in another.
When performing a California background check, the state civil statute (California's Investigative Consumer Reporting Agencies Act) must be followed as there are a variety of restrictions imposed. A misdemeanor marijuana conviction older than 2 years is not reportable and therefore an adverse action decision may not be made based on this offense. Criminal convictions and credit data are not allowed to be reported beyond the 7 year period from the date of disposition. Arrest only records are only deemed reportable if the case is pending but if the arrest did not result in a conviction, it can not be used. An applicant authorization must stipulate that the candidate has a right to request a copy of his or her report.
Consumer notification: Each applicant must be provided a disclosure (prior to initiating a background check) notifying them of their rights including the ability to dispute information.
Pre-adverse action: Prior to making an adverse decision, an applicant must receive a disclosure that outlines "A summary of rights under the fair credit reporting act" and a copy of their consumer report must be provided.
Adverse action: Once a decision has been made to take an adverse action, the applicant must be provided the following:
The name, address and phone number of the consumer reporting agency. A notice of the individual's right to dispute any information they believe to be invalid and his or her right to obtain an additional free copy of the report within 60 days.
Before choosing an outside vendor to conduct your background employment screening, make sure they provide compliance services and adhere to your state statutes otherwise you will be required to apply federal and state law to each and every report that you receive. By hiring a professional screening firm, you can save yourself a lot of headaches!
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