Tenant Screening – Why you will now want eviction reports

Beginning July 1, 2017 the 3 major credit bureaus will enact their National Consumer Assistance Plan (NCAP) and make some major changes to what will be reported on credit reports. The credit bureaus will remove most tax liens and civil judgments from credit reports, making it much harder to determine if yoWordItOut-word-cloud-2182729ur applicant has been evicted through the court system or if they haven’t been paying their taxes. Applicants that don’t pay their taxes can have a tax lien, possible wage garnishment and asset freeze put on them, leaving them low on funds to take care of rent. While there will not be a way to determine if the applicant did or did not pay their taxes after the NCAP plan has been enacted, there is a solution to the possible evictions.

An eviction report searches by name and returns a report with the following information:

  • CASE NUMBER                           •          FILE DATE
  • JUDGMENT AMOUNT               •          PLANTIFF NAME
  • DEFENDANT NAME                  •          COUNTY
  • ADDRESS                                     •          ADDITONAL INFORMATION

 

Once the information is returned to us, we compare the addresses on the eviction report against an address history report (a report that pulls all addresses associated with applicants’ SSN). We determine which records are the applicant’s by matching them to addresses on the address history report, assuring that the person on the report is your applicant.

If you have been using the credit report to view possible civil judgments such as tax liens, your alternative is to run a civil report. Civil reports can be pulled federally or by county. Unfortunately, civil reports are not instant and have a general turn-around time of five business days.

AAA Credit Screening strives to stay ahead of changes that affect you, our clients, doing our best to offer alternatives when you need specific information. As background screening processes continue to change and evolve, we will be here to help you continue to make the best decision possible.

AAA Credit Screening Services – 888-282-0447 – www.hrbackground.com

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Employment Screening Adverse Action

As an employer, navigating employment laws can be a tricky endeavor. Compliance with the Fair Credit Reporting Act (FCRA) adds to those headache inducing, pain staking chances of making mistakes that opens your comprejectedany up to litigation. The FCRA has specific guidelines that must be followed when you are considering not hiring an applicant called Adverse Action that applies when you have utilized a background screening company. Adverse Action is defined by the FCRA as “A denial of employment or any other decision for employment purposes based in whole or in part on a consumer report that adversely affects any current or prospective employee.” -FCRA §603(k)(1)(B)(ii) and FCRA §615.  Adverse Action not being properly followed is the top reason for class action lawsuits for FCRA violations.

So how do you keep your company out of the cross hairs of this type of litigation? Follow these simple steps:

If you think you might not hire the candidate:

  • Sent the candidate a letter (the pre-adverse notice) that explains the background check results are under review and a decision is pending
  • Include a copy of the candidate’s background check results
  • Include a copy of “A Summary of Your Rights Under The Fair Credit Reporting Act”
  • Keep a copy of the letter and attachments, and document the date sent. (send by certified mail if you’re sending the notices yourself)
  • Consider sending by certified mail if you’re sending the notices yourself
  • Wait no less than five (5) business days before taking any additional actions so the candidate has time to dispute inaccuracies.

If you decide to not hire:

  • Send a denial of employment adverse action letter to the applicant informing them of decision, and that the decision was based on, at least in part, of the background check results.
  • Include the name, address, and phone number for the CRA that performed the background check and a statement explaining the CRA wasn’t the decision maker and can’t explain why adverse action was taken.
  • Inform the job candidate of the right to request a free copy of the background check within 60 days and the right to dispute inaccurate information.
  • Keep a copy of the letter and attachments, and document the date sent (send by certified mail if sending them yourself)

You are able to view and print the pre-adverse and adverse action letters by logging into your Instascreen account. You will select the applicant you would like to send the adverse action letter to, then on the reports results page scroll down to the “Disclosures and Forms” section and use the drop-down box to select the appropriate document. Your choices at that time are to view, print, or email to applicant.

As always, AAA Credit Screening is here to answer any questions you may have about the adverse action processes.  Give us a call at 888-282-0447 or visit our website at www.hrbackground.com.

Bye-Bye, Liability Waiver

In a case that went before several district courts, as well as an appellate court in 2016, an individual, Sarmad Syed, went up against M-I, LLC, a Delaware Limited Liability Company and PreCheck, Inc., a Texas Corporation. Syed’s counsel filed an appeal to reverse a district court’s dismissal of their complaint, which argued that a liability waiver included in a statutorily mandated consumer report disclosure violates the Fair Credit Reporting Act (FCRA). The district court’s dismissal was because Syed and his counsel could not support their allegation of “willfulness” in the ebuh byemployer’s violation of the FCRA, which is necessary for the court to order the employer to pay damages.

The panel of judges at the appellate court held that a prospective employer is willfully violating the FCRA when obtaining a job applicant’s consumer report after including a liability waiver in the same document as the job applicant’s statutorily mandated disclosure. This is because of the FCRA’s requirement for the “clear and conspicuous” disclosure document to consist “solely” of the disclosure. The only exception to this requirement (which is, in fact, encouraged by Congress) is for the inclusion of an authorization statement and place for the applicant to sign, approving the procurement of their consumer report. The court found that there were no additional, implied, exceptions to the “solely” requirement, considering this express exception.

This decision sets a precedent, wherein employers violating the FCRA’s disclosure requirements may be required to pay out large class action settlements. Willful violations of the FCRA can result in actual or statutory damages, ranging from $100 to $1,000 per violation, which can add up quickly in class action litigation, especially if the court orders additional punitive damages.

Another point of note on this case is the explicit reason why the FCRA was found to be willfully violated. A prospective employer is not violating the FCRA simply for placing a liability waiver on the same page as a disclosure statement; the employer violates the FCRA when, after violating the disclosure requirement, it “procure[s] or cause[s] to be procured” a consumer report about the applicant. This means if your applicant was given a disclosure document with a liability statement, but you have not yet procured a consumer report on the applicant, you still have time to give the applicant an amended disclosure statement, sans the liability clause.

All forms that employers use for procuring background checks from consumer reporting agencies (CRAs) such as AAA Credit Screening are under an obligation to ensure their forms comply with the FCRA, as well as any other relevant state or local laws. AAA Credit Screening has made a commitment to keep all our disclosure and applicant forms up-to-date with any FCRA requirements. If you are unsure if your consumer report disclosure document is violating the FCRA, try using our form here.

For more information, please visit our website at www.hrbackground.com, or give us a call at 888-282-0447 to reach the friendly staff at AAA Credit Screening Services.

 

AAA Credit Screening Services does not provide legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal advice. You should consult your own legal advisors before engaging in any transactions.
Sources:
SARMAD SYED V. M-I, LLC, 28 (Fresno District Court Jan. 20, 2017).
Syed v. MI, LLC, No. 1: 12-cv-01718-DAD-MJS (E.D. Cal. Feb. 27, 2017).
Syed v. MI, LLC, No. 1: 12-cv-01718-DAD-MJS (E.D. Cal. Feb. 22, 2017).

Texas Ban the Box

0119_GeoCasillas_billA new bill has been introduced into the Legislature of the State of Texas.

In March of 2016, Austin City Council passed an ordinance that prohibits any employers with 11 or more employees (doing business in Austin) from asking about criminal history on a job application. It is the only ordinance that affects both private and public employers in Texas.

The new bill, House Bill 577, will overturn Austin’s 2016 ordinance, and will require only public employers to conform to the ordinance.

If the bill receives enough votes, it will go into effect immediately. If it does not receive enough votes, the bill will take effect on September 1, 2017. Either way, all Texas employers will have to conform to the bill’s requirements by the end of 2017. In the meantime, Austin employers should continue to conform to the current ordinance.

Right now, the bill has only been filed. It has not yet been sent to the committee for approval. If you would like updates on Bill 577, please call the Texas 85th Legislature, District 47 office at 512-463-0652.

AAA Credit Screening Services

www.hrbackground.com

888-282-0447