Screening Compliance

As an employer or volunteer organization, the laws are different if you use a 3rd party for background checks than if you perform them in-house. Companies that perform background checks are called “Consumer Reporting Agencies” (CRA)and they must follow the “Fair Credit Reporting Act” (FCRA). Don’t let the name fool you, it doesn’t just apply to credit. The FCRA is a federal law that regulates the collection, dissemination, and use of consumer information to be used for credit evaluation and other purposes including employment screening and tenant screening.

Any organization that utilizes a CRA is also subject to regulation under the FCRA, so these organizations must understand their FCRA obligations as it relates to third-party screening services. We at Providence Screening are here to help you navigate through the process, but if there is ever a question, please give us a call. Of course, you should always consult experienced legal counsel to be fully compliant.

Steps for Basic FCRA Compliance

1. Provide disclosure to and obtain written authorization from the applicant before ordering the background check.
2. Identify the purpose for ordering the report to the consumer reporting agency.
Due to the nature of the information obtained in a background check, it is important to understand your obligations in utilizing and protecting that information. When ordering from our web-portal, you will certify with each order to ensure compliance.

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3. Provide the required FCRA notice before an adverse action is taken
“Adverse Action” is denying a candidate an opportunity based on information received in a background check. This not only applies to pre-employment but also volunteers, promotion or retention opportunities. This is the first in a two-step process, and is referred to as “Pre-Adverse Action”. This notice advises the candidate that some information was provided by a CRA that may impact the decision to proceed. This notice must be on your organization’s letterhead and include the name and contact information for the CRA that performed the background check. In the event the information is incorrect, the candidate will know who to contact to get it corrected. There is a document that must be included with this notification that explains to the candidate their rights.

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FCRA Preliminary Notice of Adverse Action – Sample

Summary of Rights Under the Fair Credit Reporting Act (eff. 9.21.2018)

4. Provide notice after an adverse action is taken that meets FCRA requirements
This means that the decision not to proceed with the candidate has been finalized. It also means the candidate has not disputed the accuracy of the information included in the Pre-Adverse notification. It is recommended this notice is sent five days after the Pre-Adverse Notification is sent to the candidate. This process has been the subject of frequent litigation, so both steps must be followed in the recommended time-frame.

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FCRA Notice of Adverse Action – Sample

General Compliance

EEOC Compliance

The Equal Employment Opportunity Commission strongly discourages blanket decisions on adverse criminal information. Each candidate needs to be considered as an individual case and should take into account:

1. The nature of the crime committed
2. When the crime occurred
3. If the crime is job-related
4. Also, the individualized assessment of actions should be analyzed.

Individualized Assessment: The EEOC’s guidance relating to the use of criminal records in employment strongly cautions end-users to individually assess each potentially adverse report, instead of automatically disqualifying an applicant, before making a hiring decision. Utilizing the four criteria (nature, time, job-related, details surrounding event) gives a better picture of the candidate and prevents eliminations

Ban the Box

Many cities and states have enacted “Ban-the-Box” legislation. This refers to asking applicants on the preliminary application if they have been convicted of a crime. This is strongly discouraged at this initial contact, even if you are not located in one of the 35 states or 150+ cities. This allows employers to consider a candidate’s qualifications without the stigma associated with an arrest or conviction. Many allow the inquiry after an interview or a conditional job offer. If you are unsure if you are in one of the impacted areas and this box is on your application, it is better to be safe than sorry. Providence Screening would be happy to review your application and make suggestions.

Fair Chance Act

The Fair Chance to Compete for Jobs Act of 2019 is a federal “ban the box” policy that was signed into law on December 20, 2019. The law prohibits federal employers and private employers that contract with the government from inquiring about conviction history until a conditional offer has been made. The law not only provides ban the box protection, but it also includes complaint and appeal procedures for any employers that violate the policy.

Components of Fair-Chance Legislation Enforcement
Ban-the-box and delay conviction history inquiries until conditional offer. Job application violations are straightforward to investigate. Waiting until the final hiring stage clarifies the rationale for an adverse decision, facilitating enforcement.

• Require individualized assessments considering the age of the offense, job relevance, and evidence of rehabilitation..
• Provide the candidate notice of the specific reasons for the potential denial and the opportunity to review background-check results, before a denial. Background checks could have errors. This prevents misinformed decisions.
• Strong penalties for employers and incentives for complainants to come forward, such as directing the penalty funds to complainants, or having significant monetary remedies available.
• Anonymity and retaliation protection help job seekers and workers to come forward.

Providence Screening will be happy to review your current process to ensure it is legally compliant

What to Order and Why

To have a comprehensive background check, the components will depend on the position and responsibilities, but Best Practices in the screening industry recommends at the minimum, performing a social security trace, county of current residence, and a national criminal search. The SSN Trace is a great way to uncover addresses that may not have been disclosed by the candidate. The county of current residence is the most up-to-date court search, and the national search casts a “wide net” to uncover potential records outside of the county of residence. Providence Screening offers employment and education verification and other searches that meet requirements for positions in various industries (FACIS, Workers Compensation, Federal criminal, etc).

If you do not already have defined searches based on the position within your organization, please contact us for best practices within your specific industry. See the Services Page for more information about each search option.

Reporting the Results

The Fair Credit Reporting Act mandates that a CRA cannot report non-convictions past seven years, and while conviction records are less restricted, Providence Screening also limits conviction reporting to seven years. This allows you the confidence of knowing that all data provided is actionable under the FCRA. Many states have exemptions based on expected salary, and certain industries and roles require more than seven years, but unless specifically requested, only actionable data within the last seven years will be reported. This means we do not report dismissals, pending cases, probation before judgment, deferred adjudication, etc. As Infractions are rarely job-related, it is our policy to not report them. We do report traffic violations, and of course felonies and misdemeanors. As each court has their own terminology, there may a charge or a disposition term that seems unfamiliar. If there is any question about terminology, or our reporting criteria, please feel free to give us a call.

As courts use different terminology, they also have different systems of record and the identifiers available are not consistent. While an SSN is a great identifier, it is rarely captured or documented on court records. That makes the accuracy of information provided to initiate the background check vitally important. From the correct spelling of the last name, to providing the middle name or initial, even the race/gender can be used to disqualify a subject with the same name as your candidate. In cases with a common name, sometimes hundreds (even thousands) of hits can be returned. The presence of even a middle initial can make a huge difference in weeding out non-matches. Please review all data prior to submitting to ensure it is complete and accurate.

Self-Reporting – it is possible that a candidate self-reported an event that does not come back on the background check. There can be many reasons for this such as the time period, offense level, charge result, etc. If you are entering the request and are aware of an event, please notify us in special instructions so that we can confirm.

Additional Forms