Adverse Action for Employment Screening

Navigating employment laws can be complicated. Complying with the Fair Credit Reporting Act can add even more complications including chances of making mistakes that could lead to litigation against your company. There are very specific FCRA guidelines that are to be followed when an employers considers not hiring an applicant and have used a background screening company. Those are referred to as Adverse Action and is defined by the FCRA as “A denial of employment or any other decision for employment purposes based in whole or in part on a consumer report that adversely affects any current or prospective employee.” -FCRA §603(k)(1)(B)(ii) and FCRA §615.  The top reason for class action lawsuits for FCRA violations is Adverse Action not being properly followed.

Need some guidelines to follow to avoid future litigation against your company? Follow these simple steps:

When you are considering not hiring a candidate:
  • Send the candidate a letter (the pre-adverse notice) that explains the background check results are under review and a decision is pending
  • Include a copy of the candidate’s background check results
  • Include a copy of “A Summary of Your Rights Under The Fair Credit Reporting Act”
  • Keep a copy of the letter and attachments, and document the date sent. (send by certified mail if you’re sending the notices yourself)
  • Consider sending by certified mail if you’re sending the notices yourself
  • Wait no less than five (5) business days before taking any additional actions so the candidate has time to dispute inaccuracies.
Once you have decided to not hire:
  • Send a denial of employment adverse action letter to the applicant informing them of decision, and that the decision was based on, at least in part, of the background check results.
  • Include the name, address, and phone number for the CRA that performed the background check and a statement explaining the CRA wasn’t the decision maker and can’t explain why adverse action was taken.
  • Inform the job candidate of the right to request a free copy of the background check within 60 days and the right to dispute inaccurate information.
  • Keep a copy of the letter and attachments, and document the date sent (send by certified mail if sending them yourself)
You are able to view and print the pre-adverse and adverse action letters by logging into your Instascreen account. You will select the applicant you would like to send the adverse action letter to, then on the reports results page scroll down to the “Disclosures and Forms” section and use the drop down box to select the appropriate document. Your choices at that time are to view, print, or email to applicant. There are also sample forms that you can look at by clicking here.