The Federal Fair Credit Reporting Act (FCRA) imposes several obligations on users of consumer reports that are procured for employment purposes, such as the requirement to engage in what is known as the “adverse action process.” Katie Robinson, Senior Corporate Counsel, Global HR Research, a DISA company, recently presented a webinar for DISA covering the FCRA compliance steps and the adverse action process.
Here’s a quick summary of everything she discussed.
Basic Understanding of the Adverse Action Process
Under this required process, employers must follow certain key steps prior to taking adverse employment action against a consumer based either in whole or in part on the contents of a consumer report. Before understanding the steps of the adverse action process, you must:
- Gain a thorough understanding of the obligations under the Federal Fair Credit Reporting Act (FCRA) for employers.
- Learn the specific steps of the adverse action process in compliance with the FCRA.
- Acquire practical strategies for ensuring FCRA compliance in your organization’s employment practices.
Who Must Participate in the Process?
The consumer report must have been procured for an “employment purpose” which is a “permissible purpose” under the FCRA. The employment purposes include traditional employment, volunteers, and independent contractors. Adverse actions also include any negatively impactful decisions which cover the denial of employment or promotion, or termination of employment amongst many others. The adverse action must be based on the contents of a consumer report in whole or in part.
Pre-Adverse Action Notices
Pre-adverse action notices must be sent before you take adverse action. It must be in writing. There’s no specific text that’s required, but it must include a copy of the Consumer Report and Summary of Rights.
When to Send Adverse Action Notices
Employers should give a reasonable amount of time between sending the two notices (approximately 5 business days). The time should be long enough to allow the consumer to review their report and decide whether to either dispute the contents of the consumer report or provide the employer with mitigation or rehabilitation evidence.
It is highly recommended to provide the adverse action notice in writing, though it’s not technically required by the FCRA. It is required that you include important information, such as the name, address, and phone number of the CRA that supplied the report. It should also include a statement that the CRA did not make the decision to take adverse action against the consumer and is unable to provide specific reasons for the decision, and a notice of the right of a consumer to obtain a full file disclosure from the CRA and to dispute the accuracy or completeness of any information included in the report. Again, this must include a copy of the Consumer Report and Summary of Rights.
There are a few pitfalls that employers should keep on the lookout for. The first is contracting with a third party to handle this process, which means you hire somebody to handle and send out the letters for you. Employers typically outsource this process to a CRA or a human resources agent, but it is important to understand that these obligations are non-delegable. This means that employers can’t avoid liability simply by outsourcing the process, so it’s important to keep tabs on who is handling these processes.
The second pitfall involves using a matrix to adjudicate or grade reports. Many employers use this process, but you shouldn’t solely base your decision on the matrix alone. It is highly recommended that you give the applicant an individualized assessment, don’t do pass/fail grading, and don’t use grading as a shortcut for reviewing background reports.
Consequences of Non-Compliance
Non-compliance with FCRA regulations can lead to various consequences. The statutory damages available under the FCRA, which can include the failure to include certain information in the notice sent or not sending it at all, can lead to $100 to $1000 for each violation. The statute is consumer-friendly and provides damage compensation for the consumer that was due to the violation. The worst-case scenario includes punitive damages for what’s considered “willful violations.” This is when you know that you should be doing something and make the conscious decision not to do it or do it the wrong way. Finally, the statute is especially attractive to plaintiff’s attorneys, as the statute shifts attorney’s fees if the case is resolved in favor of the plaintiff.
Understanding and adhering to the FCRA's adverse action process is vital for maintaining compliance and treating candidates fairly.
- Sending pre-adverse action notices is vital before you take adverse action.
- Employers must give applicants a reasonable amount of time to review the notice and provide any relevant information to the employer or CRA.
- The adverse action notice can then be sent once you know you’re going to take the action itself.
- Never let your decision matrix give the impression that you collapsed or circumvented the adverse action process.
Make sure that you’re taking every step. By following these guidelines, employers can navigate the complex landscape of consumer reports while ensuring transparency and due process.
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- Understanding Federal Laws for Background Checks in Healthcare: A Guide for Employers and HR Professionals
- Don’t Risk Unlawful Termination Lawsuits: Adverse Action Notices are the Law
Are you an employer and still have questions regarding employment screening?
DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA.’
Visit www.askdisa.com to ask your questions today.
About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.