Is your Background Check Disclosure Meeting FCRA Requirements?
The National Association of Professional Background Screeners offers a basic certification of FCRA guidelines. Here is some information about disclosure requirements from this certification that you may not be aware of.
When the consumer report will be used “for
employment purposes,” the disclosure:
? Should be clear, conspicuous and in writing.
? In a document that consists “solely of the
disclosure.”
? Should not be part of a printed employment
application.
? Should be made when the consumer applies
for the job or commences employment.
? Blanket disclosures are permitted for the
duration of employment.
15 USC § 1681(b)(b)(2)
FTC Staff Report, July 2011, p. 51
ICRs (Individual Consumer Report): The end user must disclose that it will
obtain an ICR including information regarding
the consumer’s s character, general reputation,
personal characteristics and mode of living,
whichever are applicable, and the disclosure:
> Must be in writing.
> Must be mailed not later than 3 days after
the report is requested.
> Must inform the consumer of his right to a
disclosure of the nature and scope of the
investigation requested.
15 USC § 1681d(a)(1)
Failure to follow FCRA guidelines can lead to individual plaintiff's lawsuits. The typical claim is based on employer's failure to follow the disclosure and authorization requirements. Consumers file thousands of FCRA
lawsuits every year.
The damages recoverable depends on the
type of violation proven.
> Negligent violations: Plaintiffs can recover
actual damages. 15 USC § 1681o(a).
> Willful violations: Plaintiffs can recover
actual damages or “statutory” damages of
$100-$1,000 per violation, plus punitive
damages. 15 USC § 1681n(a).
The FCRA is a “fee shifting” statute; so,
prevailing plaintiffs can recover their
reasonable attorneys fees.
15 USC§ 1681n(c) and 1681o(b).
Plaintiffs have a right to a jury trial in FCRA cases; so, the amount of damages is determined by the jury, in most cases.
There are many more requirements including "Adverse Action" notifications. It is vital to be aware of your duties as an employer.
Scott Kern is the Senior Vice President of Shadow Trackers, a full service background and pre-employment screening firm.