Under the Fair Credit Reporting Act (FCRA), an applicant has a right to 1. Be told if information in their file has been used against them to deny employment or to take another adverse action against them, 2. Know what is in their file, 3. Dispute incomplete or inaccurate information, and 4. Seek damages from violators. Employers often wonder if they have an obligation to send a second pre-adverse action notice to an applicant after updating the background screening report. Pam Devata and Jennifer Mora of Seyfarth Shaw LLP recently shared information about Wright v. Lincoln Prop Co., in which a judge in the Eastern District of Pennsylvania considered how an employer can comply with the adverse action process if it relies on an initial background report before revoking a job offer, but then received a subsequent, corrected report. Both parties in the case moved for summary judgement, but the court denied the employers motion for summary judgement because a copy of the final report was not sent to the plaintiff. According to Devata and Mora, however, this is a not a blanket requirement. It is worrisome, in fact, that the FCRA language, shall provide a copy of the report to the consumer to whom the report relates could be defined differently from judge to judge. Another judge could determine that must provide can mean actual receipt or proof of delivery. It is in the best interest of employers to strive for achieving best practices that exceed the legal minimum requirement.
W. Barry Nixon is the COO, PreemploymentDirectory.com the leading background screening information portal and online worldwide directory of professional background screening firms and Suppliers to the background screening industry. He co-authored the landmark book, Background Screening & Investigations: Managing Hiring Risk from the HR and Security Perspective. He also is the publisher of award winning newsletters, The Background Buzz and The Global Background Screener, and the author of the Background Checks column in PI Magazine.
In addition, Barry is a past recipient of the elite ‘Top 25 Influential People in Security’ by Security Magazine and past Co-Chair, International Committee for the National Association for Professional Background Screeners (NAPBS). He currently serves as a Global Ambassador for NAPBS.
You can contact Barry at 1-949-770-5264 or online at wbnixon@preemploymentdirectory.com