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When it comes to HR policies and procedures, one expects the larger companies to be on top of the important aspects of utilizing employment screenings, especially when the results of the screening leads to adverse action.  They have the money to hire the top people, or at least the money to pay the talent that can ensure that proper procedures are followed with every hire.

A recent lawsuit was filed against one of the largest entertainment and amusement companies, alleging that the company violated the FCRA by not notifying the applicant of the adverse action taken against him as a result of his background check.   In the lawsuit, the applicant states that the company did not provide him with a copy of his background check report; did not issue a pre-adverse action notice; and never sent him a written notice of the adverse action. 

The other issue is the timing of the record that was found.  The record utilized for the purpose of adverse action was allegedly 13 years old, well beyond the 7 year reportable period allowed by the FCRA.  Had the applicant received the pre-adverse notification, it would have allowed him to respond to the record in question and clear up any inaccuracy.

For any company, large or small, it is important to ensure that policies and procedures are in place, and that all applicable laws surrounding the use of background checks are understood and clearly defined by the HR departments or employees.  The use of a third party employment screening company can offer additional safeguards as well, such as pre-drafted letters for pre-averse and adverse action.

Employers should always ensure the following are done to make sure problems are avoided:

  1. Make sure there is a company policy for adverse action procedures.  A uniform process that clearly outlines the timeliness of a pre-adverse action and an adverse action are important to make sure compliance with federal and state laws is met
  2. Always provide the applicant with a copy of their background check report.  This gives an individual the opportunity to see what is being reported
  3. Make sure the applicant received a copy of the “Summary of Rights,” which is a FCRA requirement, when sending out the pre-adverse action notice
  4. When signing up with a background check company, like PeopleG2, you contractually agree to follow the proper procedures as outlined by the FCRA
  5. Utilize the employment screening provider for pre-adverse and adverse action notifications.  These are typically available for a nominal fee, and can save a lot of headaches if they are not done right
  6. Documentation of every action is the best way to proceed.  Verbal adverse action does not meet the FCRA requirement.  Be sure to document all actions taken against an employee or applicant

The best way for any company to avoid litigation is to ensure documentation of all procedures during the hiring process.  When conducting criminal background checks, understanding and knowing the consumer rights of the applicant and complying with the procedures that are in place to protect them is the first step towards avoiding litigation all together.

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