Fair Credit Reporting Act Firm in Miami-Dade County
During the hiring process, employers may wish to run a background check on the applicant in order to obtain the applicant’s criminal record or credit history. When hiring a third-party to run these types of background checks, employers must ensure compliance with the Fair Credit Reporting Act (“FCRA”). The Federal Trade Commission (“FTC”) enforces the FCRA. In order to help employers gain an understanding of the requirements, the FTC has published guidance on this issue.
The FCRA requires that an employer comply with the following procedures prior to running a background search with a credit reporting agency:
- Inform the applicant that the information may be used to make employment decisions, which requires that the notice be in writing and in a stand-alone format.
- If the requested report includes personal interviews concerning a person’s character, general reputation, personal characteristics, or lifestyle, the employer must also tell the applicant or employee of the right to a description of the nature and scope of the investigation.
- Obtain the applicant or employee’s written permission to do the background check.
- Certify to the third party that is running the report that the employer:
- Notified the applicant and obtained permission to get the background report;
- Complied with all the FCRA requirements; and
- Does not discriminate against applicants or employees, and will not misuse the information
Once an employer receives the background report, if it intends to make an adverse employment decision based on the report, the FCRA has additional requirements:
- Prior to taking the adverse employment action, the employer must give the applicant or employee:
- A notice that includes a copy of the consumer report the employer relied on to make the decision; and
- A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which third party companies running the reports should issue.
By providing advance notice, the applicant or employee has an opportunity to review the report and explain any negative information. Guidance from the FTC also indicates that after the employer takes the adverse employment action, the company must inform the applicant or employee: (1) that he or she has been rejected because of information contained in the report; (2) of the contact information for the third party running the report; (3) that the third party running the report did not make the employment decision and therefore, cannot provide specifics about the decision; and (4) that he or she has the right to dispute the accuracy or completeness of the report, and to get an additional free report from the third party within 60 days.
This list is not exhaustive and strict compliance with the law is critical.
If you have questions about the requirements of the FCRA, how to comply with it, or you think you have been subjected to an adverse employment action in violation of the FCRA, contact an experienced attorney at BT Law Group who can explain the applicable laws and provide advice on how to address certain findings resulting from a background search, or file a lawsuit on behalf of an applicant whose rights were violated.
