We’ve spent a great deal of Q4 and Q1 focusing on the enormous amount of class action lawsuits stemming from violations of background check law. We can’t stress this enough: If you’re not paying close attention to your internal background check procedures, or to the processes used by your contracted Consumer Reporting Agency (CRA), you are putting you’re company at risk. Employment attorneys are latching onto these claims faster than a hummingbird beating its wings, and the Equal Employment Opportunity Commission (EEOC) is eager to continue to flex its muscle following the release of its 2012 guidance.
What many employers continue to fail to (a) realize or (b) address is that disclosure forms play a vital role in the bulk of these litigations. Faulty or erroneous disclosure forms are unbelievably easy to spot; and as more employees are subjected to background checks, they are becoming increasingly knowledgable about what a proper consent form should look like. Not to mention those employment attorneys who are actively seeking these types of cash cow cases.
The Fair Credit Reporting Act (FCRA) is the governing law when it comes to background check disclosure forms. It has a number of requirements, including, but not limited to:
- employers must tell candidates and employees that a background check may be requested
- this should be done in writing on a document with clear, concise language
- no extra information should be included in the document… it needs to ‘stand alone’
- the candidate or employee needs to consent in writing to the background check
The problem employers are running into (and will keep running into until lawsuits like this are settled) is the ‘stand alone’ requirement. According to this attorney, “The problem is that while the FCRA specifies that written authorization from the applicant or employee may be included with the disclosure form, it down not specify what other information may be included.”
Therefore, plaintiffs in these cases are arguing that ANY other information included on the forms violates FCRA law.
Here’s what she recommends to stay on the right side of the law:
- DO NOT include the disclosure from within the job application packet
- DO NOT include any additional information on the disclosure
Active Screening believes in not only providing exceptional service to our clients, but in educating others about the importance of background checks and following background check law. It’s crucial that employers and employees alike have a thorough understanding of background check law because of the amount of Personally Identifying Information (PII) that is examined during a check (and to avoid those costly lawsuits). CRAs have a duty to uphold the law and protect clients’ PII as much as possible.
One of the ways we protect our clients and educate other people interested in proper background check procedure is to provide our consent form templates completely FREE on our website. The template we offer is in full compliance with federal and state laws. It has been vetted by our FCRA attorney who is a veteran in the industry. If you want to take a look for yourself, click here. There’s even some state specific forms for California and New York who have additional compliance laws employers and CRAs need to follow.
But, we’re also including a portion of it below so you can see how it reads.
We’re sure you have more questions about how to avoid bad background check disclosure forms. Please feel free to leave your question or comment below, or call one of our expert team members at 1-800-319-5580.
DISCLOSURE and AUTHORIZATION – BACKGROUND INVESTIGATION
In connection with my application for employment or to serve as a volunteer with [Insert Organization Name] (“Client’), I understand that a “consumer report” and/or “investigative consumer report”, as defined by the Fair Credit Reporting Act (15 U.S.C. § 1681), will be requested by Client for employment or volunteer purposes, whichever is applicable, from Active Screening, Inc., (“Active Screening”), a consumer reporting agency as defined by the Fair Credit Reporting Act. These reports may include information as to my character, general reputation, personal characteristics or mode of living, whichever are applicable. They may involve interviews with sources such as my neighbors, friends or associates. The report may also contain information about me relating to my criminal history, credit history, driving and/or motor vehicle records, social security number verification, verification of education or employment history, worker’s compensation (only after a conditional job offer) or other background checks. Such reports may be obtained at any time after receipt of this Disclosure and Authorization and if I am hired or serve as a volunteer, whichever is applicable, throughout the course of my employment or volunteer service, as permitted by law and unless revoked by me in writing. Client also reserves the right to share my report with any third-party with whom I will be placed to work or volunteer with as a representative of Client. I understand that I have the right, upon written request made within a reasonable amount of time after the receipt of this notice, to request disclosure of the nature and scope of any investigative consumer report to Active Screening, Inc., 14499 N. Dale Mabry Hwy., Suite 201 South, Tampa, FL 33618 or 1-800-319-5580. For information about Active Screening’s privacy practices, see www.activescreening.com.
Acknowledgement and Authorization
By signing below, I authorize Client or its authorized agents to obtain or prepare consumer reports or investigative consumer reports about me. I acknowledge receipt of a copy of the federal notice entitled A Summary of Your Rights under the Fair Credit Reporting Act and certify that I have read this Disclosure and Authorization as well as the summary document explaining my rights under the Fair Credit Reporting Act.