If you are using information we provide for “employment purposes” (which includes individual contractors and agents that are not traditional employees), you must follow the FCRA requirements listed below.
The Fair Credit Reporting Act, better known as the FCRA, was first enacted in 1971 to ensure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality and a respect for the consumer’s right to privacy. In essence, the FCRA protects the subject of a report by putting limits on what consumer reporting agencies can report.
Even though it is named the Fair Credit Reporting Act, the FCRA applies to much more than credit reports. These reports can include the consumer’s credit standing, but can also extend to character, reputation, mode of living, and similar information that can be used to determine a person’s eligibility for credit, insurance, or a job. By these standards, background screening companies are consumer report agencies that the FCRA regulates.
Within the FCRA there are a number of rules about what must and must not be reported. For instance, bankruptcy cases can be no older than ten years and all other adverse information, with the sole exception of criminal convictions, can be no older than seven years. Also, no medical information can be shared unless the report is being used for insurance purposes.
In addition to protecting the consumer once the check is underway, the FCRA also requires an employer to disclose some information and obtain the consumer’s permission before the check can legally begin.
It is important to educate yourself. One important and well-written document to read is the Consumer Financial Protection Bureau "Notice to Users of Consumer Reports".
The background screening process is relatively simple for the applicant. First, you must give the applicant a disclosure form that informs him that you will obtain a consumer report for employment purposes. This disclosure must be separate from anything else, especially your employment application or any release of liability.
Second, the applicant must sign an authorization that permits you to obtain a consumer report for employment purposes.
The disclosure can only either be on a standalone form or combined with the authorization form. But if you combine them, then the combined form must not contain anything other than disclosure and authorization. A good test for this is whether each sentence could begin with either "We hereby disclose to you that ..." or "You hereby authorize us to ...".
The primary purpose these forms serve is to comply with the FCRA. These forms also give the background screening company permission to do the check and may serve as verification to former employers or schools that they are allowed to give information.
To give you an idea of the importance, you can read the 2017
Ruling from the Ninth Circuit Ruled that Disclosures Containing Waivers Violated the FCRA and that a prospective employer’s violation of the FCRA is ‘willful’ when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.
Where we obtain information for you based on an interview (for example, reference checks), you must also disclose to the subject that (1) you are obtaining an investigative consumer report, including information about character, general reputation, personal characteristics, or mode of living, (whichever is applicable), and (2) that he or she may obtain a description of the nature and scope of our investigation. If the subject requests that description, you must provide it within five days. Even though this is in the nature of the disclosure, you may want to put this information in your authorization, to protect the "repeateness" of your disclosure.
The FCRA you to provide a “pre-adverse-action notice” a reasonable time before making a decision based (even in part) on the report. This notice must include a copy of the report and the Consumer Financial Protection Bureau’s summary of rights. In effect, this requires the user to send the notice, and then wait a reasonable amount of time. The Federal Trade Commission has said that five business days is a reasonable amount of time when the notice is delivered by first class mail, so the normal practice is to wait at least five business days. Once that reasonable period of time has elapsed, you may make a decision based on the report, but only if the subject of the report has not disputed it. If the subject of the report has disputed it, you must wait until we resolve the dispute before taking action.
If you make an adverse decision based on our report, you must: