Interested in avoiding litigation related to the use of background check information? The following guidelines provide a starting point to assist employers in modifying non-compliant screening practices your organization may inadvertently be conducting.
- Consistently apply the screening process across all applicants.
- Run the same packages for same or similar positions, customizing package by position type and never by applicant.
- Make sure you obtain written authorization from every applicant prior to running a background check.
- Review your background check authorization form. The disclosure must be in the form of a “standalone” document to ensure it complies with FCRA requirements. The authorization by the consumer may be part of the disclosure document, but no other extraneous items should be included. NEVER add disclaimer/indemnification language to this form or merge it with the rest of the job application. This is one of the most important technicalities class action lawyers have exploited recently to squeeze settlements from unsuspecting employers. What does the law say about this? Refer to FCRA excerpt below:
15 U.S.C. § 1681b(b)(2)(A) states: A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
Follow FCRA notification requirements when using a consumer report to make a no-hire decision. This means ensuring Pre-Adverse and Adverse letters are sent in a timely fashion and allowing the applicant sufficient time to respond or dispute the report.
Consider applicants with reportable criminal records on an individual basis and take into account the type of offense, how it relates to the position and the amount of time since it occurred. Blanket denials of employment for applicants with a criminal record place your organization at risk of an EEOC action.
Note any special notification requirements or criminal records usage restrictions in your specific state or jurisdiction.
Pay attention to legal developments. If your current screening company is being litigated against by consumer class-action attorneys, be sure to understand why they are being sued and ensure you do not follow the practices that got them there in the first place. Don’t know if your screening company has a history of FCRA litigation? An online search by company name along with the words “Class Action” will reveal active and settled cases.
Consult with your legal counsel about adding an arbitration agreement to your employment process that precludes class action arbitration.
Finally, partner with a screening company like @Backgrounds that knows and follows the rules, has experience and keeps you updated on the latest developments around hiring risk mitigation.
Have a compliance question? Worried about a certain aspect of your screening procedures? Need a quote? Contact @Backgrounds at 855-776-7524 or contact@atbackgrounds.com. We are happy to help.
Disclaimer: We are not attorneys, so the aforementioned may not be construed as legal advice but rather a brief compilation of our knowledge and experience. Consult with your own legal counsel for legal advice.
