Any employer who performs background checks will inevitably be faced with candidates with negative records. You may find someone whose information doesn’t check out when you verify it, someone who has a criminal record, or find a failed drug test.
These findings may result in your decision to reject an applicant or dismiss a current employee, but you need to make sure you are following state and federal regulations when utilizing this information.
What Does Adverse Action Mean?
Within the context of background checks, adverse action means that an employer has negatively impacted an applicant’s job prospect due to information gained from the report.
Any adverse action that you take as a direct result of the information you received from a background check report that negatively affects the status of someone’s employment is adverse action. This occurs whenever an employer decides to behave in a way that would put a group of people or an individual at a disadvantage regarding their implied equal employment opportunity when applying for a job.
The umbrella of adverse action can cover anything from denying a current employee’s transfer or promotion to outright rejecting a new applicant. This can also include demoting someone by offering a current employee a lesser position.
The FCRA, or Fair Credit Reporting Act, as well as specific local and federal jurisdictions require employers to closely follow outlined procedures when sending an adverse action notification. Make sure that you follow all of the specified adverse action process criteria if you find yourself declining to hire or promote someone one the basis of findings obtained from their background report.
Why is This Important?
So, you have to reject a candidate. Why is this such a serious concern for an employer?
The adverse action process inherently affects consumers adversely, which makes it a frequent subject for litigation as well as a compliance risk for you as an employer. If you fail to follow each procedure listed for how to conduct fair adverse action, you can be faced with a class action lawsuit.
The potential risk of a class action lawsuit acts as a significant motivator for employers to make sure that their background check procedures are in compliance with the FCRA. Adverse action litigation can result in some serious payouts. For example, there was a lawsuit in 2019 that resulted in the major pet supplies chain Petco paying the plaintiff over $1 million because Petco allegedly neglected to provide their applicants with the required notices as stated by the FCRA.
Aside from the compliance risk, it is also possible for an error to occur within a background check report. You should want to ensure that you are doing the right thing by your applicants and following the process accurately in order to make sure you are utilizing the proper information in your consideration.
The Process of Handling Adverse Action
In order to deliver an adverse action notification, there are certain steps you need to follow in order to comply with the FCRA in instances when adverse action is required in relation to a background check. Before the background check is even initiated though, FCRA authorization and disclosure requirements hash out the procedures needed for notifying the employee or candidate as well as obtaining the written permission for conducting the check.
Here are the steps an employer should follow for a safe adverse action process:
Step 1: Provide Disclosure and Send a Notice for Pre-Adverse Action
After completing a background check that results in findings that are grounds for dismissing a current employee or denying a job applicant, the employer must issue a pre-adverse action letter. The pre-adverse action letter will serve as a notice to relay this information to the applicant.
Sending this Pre-Adverse Action Notice will notify the applicant that the information obtained from their background check may affect the decision of their employment negatively. This notice is intended to provide the candidate with an opportunity to absorb the situation and respond to any information that the report contains.
Make sure to keep a copy of any attachments you send as well as the letter itself while documenting the date that it was sent. Along with this notice, the company or employer that conducted the background check has to provide both a copy of the background check as well as a summary of the candidate’s rights upon sending to the candidate.
Step 2: The Waiting Period
Next in the adverse action process, the employer has to allow the candidate a reasonable amount of time to review the documents they received as the candidate may wish to dispute the accuracy of various aspects of their background report. The candidate must be allowed to address any of the information they believe are inaccurate within the background check report.
The employer also has to give the candidate in question a chance to provide clarifying information to either explain the findings within the report or potentially correct the record. While there is no specific waiting period defined under FCRA, historically courts have outlined five to seven days to be the reasonable time period to dedicate to this process.
Step 3: Review the Report Results Again
Consider the candidate’s response and corrections made to the record, if any. If, after a second review, the employer is still deciding against promoting or hiring the candidate due to the contents of the background check, the employer then must release a notice of adverse action to explain their decision. This notice can be delivered electronically or in a hard-copy form.
Step 4: Provide the Notice of Adverse Action
Time to send the notice of adverse action. This notice must clearly inform this candidate of their power to dispute your decision as well as offer to provide them with another copy of their report at any point within 60 days of their reception of the notice.
If the background check was outsourced to an outside company, then the adverse action notice must also state that the hiring decision was not made by the contractor but by the employer. You will also need to include the name and contact information (including address) of the company you outsourced to on the adverse action notice. Keep a copy of all of this for your own records, and always document the date you sent your paperwork.
Step 5: Properly Dispose of Sensitive Information
Because you will be handling sensitive documents, the FCRA requires that you as the employer to dispose of these documents securely. Paper copies of the background check results must be incinerated or shredded, and any digital copies of the files must be erased irretrievably.
What Happens if a Candidate Disputes Their Report?
Both background check companies and employers wish to maintain as much transparency, accuracy, and fairness as possible throughout the hiring process. However, it is possible for the information obtained from a credit reporting agency, county courts, and any other source to contain errors.
These errors could occur as the result of:
- Identity theft
- Outdated information reported by a credit reporting agency or credit score
- Transcription or typing errors within courthouse reports
- Confusion resulting from a common name
Because of the possibility of human errors by the credit reporting agency, courthouse reports, and more, you should always advise a job applicant to closely review the results of their report. If a consumer believes that there is an inaccuracy, they should immediately contact either their employer or the background check company to initiate the dispute process. It’s always encouraged to actively try to resolve any consumer disputes as soon as possible, despite the 30 days a background check company gives themselves to complete an investigation.
Common Mistakes to Look Out For
The most common pitfalls we see in an adverse action process are:
> Employer Does Not Issue the Pre-Adverse Action Notice
This mistake is especially common in instances where an employer doesn’t outsource to an experienced background check company. If you forget to issue a pre-adverse action notice and go straight to the adverse action notification, the consumer is refused the opportunity to dispute anything.
> The Pre-Adverse Action Notice is Missing Information
Make sure that you include both a copy of the FCRA summary of rights as well as a copy of the full background report in your adverse action notices. If either of these are missing, you will be in violation of the FCRA.
> Employer Does Not Wait Long Enough Before Issuing the Adverse Action Notice
If an employer is rushing to fill a position, they might rush through the adverse action process and not wait long enough before sending the official adverse action notice. This is common in recruiters who are anxiously awaiting to move on to a new candidate.
> Customer Disputes Are Not Addressed in a Timely Manner
While background report companies faced with a dispute legally have 30 days to investigate the claim, a good firm will prioritize this process. This is not something you want to put on the backburner and forget about before sending your adverse action notification. If there is an issue due to a credit card reporting agency error, then you should take the legal advice of experts and address it as quickly as you can.
> Employer Does Not Follow the Fair Chance Hiring Laws
Fair Chance Hiring laws are continuously growing, which means we will continue to see changes in the requirements of adverse action procedures. It is helpful to work with an outside counsel to ensure that you are following all the correct and up to date procedures.
Issuing adverse action notices is guaranteed to never be a pleasure – much less to be the one receiving the notice. But it is important to comply with FCRA regulation regardless. Following FCRA compliant procedures for adverse action (as well as any local laws relevant to the situation) will ensure that this process remains respectful, professional, and fair.
Outside legal advice is always recommended when dealing with this topic in the hiring process. For more information on everything from pre-adverse action to the final touches of the adverse action process and the fair credit reporting act, contact an expert such as our experienced team at ScoutLogic today.
ScoutLogic is not a law firm. You should always check with qualified counsel before you make any changes to your background check program. If you need a qualified attorney, we would be happy to make a referral for you.