With the year winding down, we take a look back at what some of the most talked about topics of the year for the background screening industry and what areas your organization should review to ensure that your policies and proceedures are in compliance.
Disclosure and Authorization Forms
Ensure that the Disclosure and Authorization that you use prior to ordering records is on a document that consists solely of the Disclosure and Authorization. There are still employers (large employers) that are including stipulations on this document that are outside the authorization and disclosure, such as a release of liability. The Fair Credit Reporting Act (FCRA) states:
“Disclosure to Consumer.
(A) In general. Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless –
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
AmericanChecked provides a sample of a compliant Disclosure and Authorization in our proprietary document library that you may choose to review with your counsel.
Ensure that you provide the individual with a pre-adverse action notice if you believe you will take any adverse action (not hire, not promote, etc) based in whole or part on information you receive from AmericanChecked. While not mandated specifically by the FCRA, recent litigation suggests you should wait for five business days prior to actually taking the adverse action and providing the consumer with the actual adverse action notice.
Ban the Box
This initiative is spreading like wildfire across the United States. “Ban the Box” refers to municipality and state prohibitions on inquiring on the employment application or ordering a criminal record until later in the employment screening process. In some areas, it is prohibited to make any inquiry regarding criminal offenses until after a conditional job offer has been made.
Although new municipalities and states are implementing versions of Ban the Box constantly, we provide assistance in keeping up with this through our State Rules Register that is available on the AmericanChecked ordering system when you log in. You may wish to review your jurisdiction on this program and check with your counsel to review your practices.