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Pre-Employment Screening - Adverse Action Notices

Federal law imposes several duties on users of background screening reports.

Section 604 of the Fair Credit Reporting Active - 15 USC §1681 et seq - (FCRA), requires that:

*      A User of a Consumer Report (background check) for Employment purposes, before taking Adverse Action based in whole or in part on the contents of the report, provide to the consumer (applicant or employee) to whom the report relates:

-   A copy of the report; and

-   A description in writing of the rights of the consumer as prescribed by the Federal Trade Commission (FTC).

 FTC Summary of Rights - click on this link to download a copy of the FTC Summary of Rights (available on Moco's web site).

 *      Any person who takes Adverse Actions based in whole or in part on information contained in a Consumer Report (background check) must after the action is taken:

-   Provide oral, written or electronic notice of the Adverse Action to the consumer; and

-   Provide orally, in writing, or electronically the name, address and telephone number of the Consumer Reporting Agency that furnished the report - including a statement that the Consumer Reporting Agency did not make the decision to take the Adverse Action and, therefore, is unable to provide the Consumer with specific reasons why the Adverse Action was taken.

-   Adverse Action Notice (Employment) - click on this link to download a standard Adverse Action Notice (available on Moco's web site) which addresses both requirements.

State law often includes similar requirements.  So a failure to comply by users of pre-employment screening reports may form the basis of regulatory or legal action at both state and federal levels.

It is hard to argue with the notion that prospective employees (applicants) should have an opportunity to dispute information that is reporting in error - before that information negatively impacts their job search. 

The problem is that the FCRA gives Consumer Reporting Agencies (CRA's) 30 days to respond to disputes and correct errors that appear in their screening reports.  This can be a problem for applicants and employers.  The answer is to provide the Pre-Adverse Action Notification (including a copy of the report) as soon as possible - and then to work with your pre-employment screening company to expedite the investigation. 

Note that direct-to-consumer employment screening reports solve this problem by putting the consumer in control of their own data.  Applicants order, review and (if necessary) dispute content they believe is being reported in error prior to granting access to the employer - there is no need to advise them of their right to (or provide them with) a copy of their screening report. 

Section 607(b) of the FCRA says that, "Whenever a consumer reporting agency prepares a consumer (screening) report  it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates" - "reasonable procedures" being the operative words.  CRA's cannot (as a practical matter) guarantee error free reports - only that they have taken reasonable steps to ensure maximum possible accuracy. 

Specifically, it is important to know that your pre-employment screening company takes the steps needed to determine whether the data reported is correctly associated with the applicant in question.  It is equally important (to employers) to know that your company doing their background checks is thorough - meaning they use the right tools and conduct addition (conditional) searches as may be required based on AKA's (other names) and addresses (disclosed or undisclosed).

It turns out that the right methodology delivers superior results for consumers and employers alike.  The right methodology may cost a little more - and may take a little longer.  But given the stakes, it is best for all concerned (the consumer, employer & CRA).

Contact Moco Incorporated if you have questions or need assistance with your employment screening needs.  Visit MyScreeningReport.com® for information about a direct-to-consumer or applicant initiated alternative to the traditional background screening model - ideally suited for small businesses.   MyScreeningReport.com® is a service of Moco Incorporated.


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