Employers Using Criminal Background Checks Should Comply With the FCRA: Part II

Part One of this article analyzed whether employers who use criminal background checks as part of their hiring practice must comply with the Federal Fair Credit Reporting Act (“FCRA”).  Employers who obtain “consumer reports” from a “consumer reporting agency” are well advised to do so.  But how?

Employers who use criminal background checks as part of the hiring process should take the following actions to comply with the FCRA:

  • The Employer must make a clear, conspicuous, written disclosure notifying the individual that a consumer report may be obtained for employment purposes.
  • The disclosure must be in a document consisting solely of the disclosure.
  • The individual must authorize the procurement of the report in writing.
  • The Employer may then request a report from its preferred reporting agency, but must certify to that agency that the Employer has made the required disclosure to the individual, secured the required authorization from that individual, and that it will not use the report in violation of any equal employment opportunity law.
  • If the Employer then wishes to take adverse employment action based in any way on that report, the Employer must first provide the individual with a copy of the report and a description in writing of the individual’s rights under the FCRA.  Those rights include an opportunity to correct inaccurate or erroneous information contained in the credit report by reporting inaccuracies to the credit reporting agency that produced the report.
  • After the Employer takes the adverse action, it must give the individual notice (strongly recommend in writing) that the action has been taken.

 Local employers should also be aware that Maryland, Virginia and the District of Columbia prohibit employers from asking applicants and employees whether they have ever been arrested, except in limited circumstances.  National employers must understand the local laws governing inquiries into arrest information before they engage that as part of the hiring process. 

Employers, and specifically HR professionals are well advised to review the FCRA in full, then review their hiring practices with counsel to ensure compliance.