Why Screen? – Reduce Potential for Legal Liability
May Arise For Reasons Of:
(A legal rule that the principal or employer is liable for harms done by
agents or employees while acting within the scope of their agency
The failure to use reasonable care in the employee selection process, resulting in harm caused to others. Employers have a legal duty not to hire people who could pose a threat of harm to others, which can include everything from slight to fatal bodily injury, theft, arson, or property damage.
Employers that use the services of a third party in preparation of an employment screening report. If a third party prepares or provides any portion of an employment screening report (such as criminal records, employment references, or education verifications), then the FCRA will apply.
The FCRA was most recently amended by the Fair and Accurate Credit Transaction Act (FACTA or FACT Act) of 2003.
Strict adherence to the FCRA is required when utilizing Consumer Reports.
2. Employers must provide a clear and conspicuous disclosure in writing to the applicant before the report is obtained. Also, employers must obtain a written authorization before obtaining a consumer report (FCRA § 604(b); 15 U.S.C. §1681b(b)).
The disclosure and authorization can be combined in a single document, but should contain nothing more than the authorization and disclosure.
3. Employers need a disclosure form for an Investigative Consumer Report (FCRA § 606(a); 15 U.S.C. §1681d(a)). Often times, the forms are combined.
The applicant must be notified by the user of the Investigative Consumer Report (e.g. the employer), within three days, that an Investigative Consumer Report has been requested and that he or she has the right to obtain additional information as to the nature and scope of the investigation requested.
See the FTC, Notice to Users of Consumer Reports: Obligations of Users Under the FCRA for further details.
4. Additionally, the applicant must receive a copy of the FTC document, A Summary of Your Rights Under the Fair Credit Reporting Act .
5. The adverse action rules apply to decisions not to hire an individual based in whole or in part on a consumer report. If adverse action is intended and before it is taken, an employer must provide the applicant with a copy of the report and the FTC document, A Summary of Your Rights Under the Fair Credit Reporting Act (FCRA §604(b)(3); 15 U.S.C. §1681b(b)(3)). This is the first notice, also called the Notice of Pre-Adverse Action .
6. If, after sending out the first notice and related documents, the employer intends to make a final decision not to hire, then the employer must provide the applicant a second notice, also called the Notice of Adverse Action .
This Notice will inform the applicant of the employer’s final decision and will provide a copy of the FTC’s form A Summary of Your Rights Under the Fair Credit Reporting Act . Additionally, the notice must provide the CRA’s contact information (name, address, and phone number), must advise the individual that: (1) the CRA did not take the action and cannot provide specific reasons why it was taken; (2) the individual has a right to
dispute the accuracy or completeness of the information; and (3) the individual has a right to another free copy of his or her consumer report within 60 days (FCRA § 615; 15 U.S.C. §1681m).
Outsourcing eliminates drain and diversion of internal staff resources.
It is rare for internal staff to have investigative experience and the ability to know whether the source of the data is reliable, and to stay current on the intricacies of changing employment screening laws and methods.
Typically Use of Internal Staff results in assigning the most
junior, or temporary employees to perform pre-employment screening.
Overall cost reduction and optimum quality control is realized using an outsourced provider.
Avoiding Pitfalls - All Employment Background Screening Processes Are Not Equal
“ Most Online Instant Internet ” Background Services are less expensive but may not yield data that is reliable for hiring purposes . There is a risk of “ False Positive” and “False Negative” results with “Online Instant Internet” searches.
A “Reliable National Online” Criminal Records Search is not available to the private sector. Only Law Enforcement Agencies are authorized to access the FBI Nationwide Criminal Records System.
Serious crimes such as robbery, kidnapping, drug trafficking, white collar crime, interstate crimes, and organized crime are typically handled by the Federal Court system. These cases can not be found in searches of state and county records systems.
Best practices indicate that Federal criminal history searches should be performed in the pre-employment screening process.