Employment Screening Adverse Action

As an employer, navigating employment laws can be a tricky endeavor. Compliance with the Fair Credit Reporting Act adds to the headache inducing, pain staking chances of making mistakes that opens your company up to litigation. The FCRA has specific guidelines that must be followed when you are considering not hiring an applicant called Adversepre employment checks 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 for this type of litigation? Follow these simple steps:
If you think you might not hire the candidate:

  • Send the candidate a letter (the pre-adverse notice) that explains that 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.

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Know what employers CAN and CAN’T find out about applicants!

Violence, theft and criminal activity have become greater risks in the workplace, which necessitates the task of pre-employment screening and employee background checks. That’s why employers are taking interest in performing criminal background checks in addition to asking about criminal records on job applications. In fact, employers who fail to take reasonable precautions about those they hire can be sued if an employee with a criminal background harms someone.  A Background Check Company relieves the employer of this time-consuming task by providing data regarding employment and pre-employment screening services in an easy, prompt and expedient manner.

emploment screening Do criminal record searches mean that applicants who have criminal background records or had a brush with the law will never find a good job, or that employers are assured that they will never hire a person with a criminal background? The answer to both is no. When private employers check an applicant’s criminal background records, they normally do not have access to governmental criminal databases. Private employers can check criminal records only by going to individual courthouses and looking through the records that are kept by each court. Since there are more than 10,000 courthouses in America, a nationwide courthouse check of the applicant’s criminal background record is not practical.

To determine where to search or perform background screening, employers will examine the resume or job application. They can also review records kept by credit bureaus that list addresses associated with Social Security Numbers, and they need to verify past jobs to confirm where a person has been and to make sure there are no unexplained gaps in employment. Without a careful check of previous addresses, criminal background records can be missed.

When an employer hires a background check company to perform the search, it is regulated by the Federal Fair Credit Reporting Act. Searches can be conducted only if an applicant provides written consent. If a criminal record is found, applicants must be given an opportunity to question its accuracy and must receive a copy of their legal rights before the decision to deny the job is made final. Due to the manner in which public records are maintained, errors are always possible, and cases of mistaken identification have occurred. There are also legal limits on how far back court researchers can go in reporting convictions.

Despite these limitations, employers still find criminal background record searches valuable. A search for criminal background records discourages applicants with something to hide and limits uncertainty in the hiring process. It also shows that an employer exercised due diligence. Even if an applicant is found to have a criminal background record during background screening by an employment services screening agency, there are legal limitations on what information can be used by an employer.

Credit Report, Criminal Records & More

If a criminal conviction or pending case is located, does that necessarily mean that an applicant is eliminated? The answer again is no. Courts have found that a policy of automatically denying employment can result in discrimination against certain groups. Instead, employers must examine whether there is a sound business reason to not hire an individual with a criminal record, taking into account the nature of the offense, whether it is job-related, when it occurred and what the person has done since.

What should applicants do if they are concerned about a criminal matter? First, ask an attorney if the criminal record can be expunged or set aside by going back to court, or whether it is the type of offense that an employer may legally ask about or consider. Second, applicants can seek to rebuild their resumes by finding employment with people they know, or with employers in a tight job market willing to give them an opportunity. Finally, honesty is always the best policy. A criminal matter explained during an interview may have much less of a negative impact than hiding it and having an employer discover it later. The denial of a job could be based upon the lack of truthfulness, regardless of the nature of the offense.

Employment Background Check Service Review

pexels-photo-212286While some consumer reporting agencies offer both employment and tenant reports, others specialize in one area. This article is a look at a variety of employment screening services, and strives to answer the question: Does specializing in one area of the background screening industry improve the quality of screening that is provided?

The simplest way to dissect multiple consumer reporting agencies’ processes is in comparison to another company’s. Here, we will compare the report options, customer service, and membership with professional screening associations between five companies and AAA Credit Screening Services (AAACSS); while remaining as objective as possible to give a fair overview of what each company has to offer.

This chart represents a summary of our findings:

review

AAA Credit Screening Services offers tenant and employment credit and background screening services. In addition to a diverse selection of tenant and employment background reports, AAA Credit Screening offers live phone answering customer service and a turnaround time for e-mail contact under one business hour. A test e-mail that was submitted during business hours via AAA Credit Screening’s website contact form received a response in less than 10 minutes.

AAA Credit Screening is an active member with the NAPBS, as well as the Society for Human Resource Management (SHRM) and the National Association of Residential Property Managers (NARPM). Of the five companies, AAA Credit Screening is the only company with fully cross-trained employees who are FCRA certified background screeners. AAA Credit Screening Services is also the only company that offered Worker’s Compensation Reports, and IRS Income Checks, two reports which can be crucial in the employment and tenant screening processes.

For more information on employment screening, and to see your options for employment background checks, see AAA Credit Screening’s employment screening page or contact AAA Credit Screening today at 1-888-282-0447.

Statistics on Workers’ Compensation Claims

Running reports on claims can help employers review prospective employee’s records before making hiring decisions.

According to the National Academy of Social Insurance, an estimated total of $62,307,000,000 in Workers’ compensation payments were made to civilian employees in 2014 *.

Workers’ compensation provides medical care, rehabilitationworkerscompion, and cash benefits for workers who are injured on the job or who contract work-related illnesses. It also pays benefits to families of workers who die of work-related causes.

Workers’ compensation benefits are paid by private insurance carriers, by state or federal workers’ compensation funds, or by self-insured employers.

In a study done by the Wyoming Department of Workforce Services, researchers found that the average duration of Worker’s Compensation claims peaked during a period of economic downturn, suggesting that employees who believe their employment outlook is poor, particularly those in states that do not require employers to hold a position for those on workers’ compensation, may have an incentive to stay on workers’ compensation for as long as possible **. top5workers

This exploitation of workers’ compensation can be alarming to employers, as out of the 62.3 billion dollars paid in benefits, only 12.9 billion came out of state funds or federal programs, leaving 49.4 billion dollars to be paid by private carriers and self-insured employers *. Most employers, however, are left in the dark as to their applicants’ past workers’ compensation claims.

For employers who are interested in their employee applicants’ history with workers’ compensation, AAA Credit Screening offers Workers’ Compensation reports. These reports provide the injury description, injury date, filing date, weekly compensation rate, and compensation dates for workers’ compensation claims. The availability varies by state. Signed releases authorizing a background check may need to be faxed directly to the record holder and some states have specific forms they require. All employers should verify they are in compliance with the ADA and FCRA.

Workers’ compensation reports are offered a la carte and in the Executive Screening Package.

Online Databases: What is falling through the cracks

If you want to know something in the information age, it is usually right at your fingertips.
Since we are oncrackse web search away from knowing the life expectancy of a bob cat or the proper way to install hardwood flooring, it may come as a surprise that criminal records aren’t as readily available.

While some courts do have online databases that an employer or landlord can search for criminal or civil records, and there are some databases that compile information from multiple sources, the fact is that the overwhelming majority of criminal records – 70% – are NOT available in the form of online searches. Where does this leave you, the employer or landlord? There are two options: first, you could use a consumer reporting agency, such as AAA Credit Screening, for your criminal reporting. AAA Credit Screening’s nationwide, statewide, and countywide reports include those records you DON’T see in your online searches, with the up-to-date information that you need to make your hiring or rental decision.

The second option is to take a chance – maybe your applicant’s legal history won’t be a part of the 70% of assault, robbery, or other records that fall through the cracks of online databases. However, this is a big chance to take when it is your workplace or property at stake – so be sure to choose wisely.

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).