The FCRA is the federal Fair Credit Reporting Act, which is the governing act applicable to Consumer Reporting Agencies (CRA) and consumer reports, including background checks. The FCRA stipulates that certain procedures be followed in order to preserve the rights and privacy of applicants. Violations of this act may create substantial legal ramifications.
If you are using a CRA such as Hire Level to screen your applicants or employees, then you must have their written permission to do so. The only exception relates to employee investigations.
The FCRA governs all background searches, not just credit reports. The Act defines permissible purposes, how the information is handled, what procedures and documentation must be followed, and even defines the procedures for when an applicant is denied a job based on the results. There is a great deal more to know about the FCRA, and we recommend all HR personnel be aware of the impact this act has on your employment decisions. The full text is available on our website.
It all depends on why you are not hiring them. If the background search revealed information that caused the adverse action in whole or in part, then you are required by the FCRA to notify them of your intent not to hire them, provide a copy of their Summary of Rights, and supply a copy of all the background reports gathered. Only after allowing the applicant time to review or dispute the results can you take adverse action against them.
Although many states offer this level of search, we have witnessed a lack of sufficient information, in our opinion, to make realistic due diligence decisions. Statewide searches often only contain what the counties choose to report, and some states do not require county participation at all – it is strictly on a volunteer basis. Additionally, most states have lengthy turnaround time, causing delays in reports. We will gladly do a statewide search where offered, but we recommend it as a supplemental search only.
How many criminal history searches should I do on any one individual to be sure I have done my due diligence?
There is no set limit. At the very least, determine where the applicant has lived and worked in the last seven years and make this the basis for your searches. This is not the place to skimp. If someone has a record, they may very well move to get a “fresh start”, so don’t limit your search to where they have lived the longest or most recently.
The National Crime Information Center (NCIC) is a computerized database of documented criminal justice information available to law enforcement agencies. The Interstate Identification Index (III), which contains automated criminal history record information, is accessible through the NCIC. Unfortunately, we cannot offer III searches, as most private companies do not have access to NCIC, although there are a few legislative exceptions. For employers who are allowed access, the III, which is a fingerprint search, can be a good source of information. However, keep in mind that the III does NOT have complete criminal information from all agencies in the US. Not all states participate in III, and those that do participate don’t always submit all of their records to the FBI.
No, they are not considered public records. That means you must have a ‘permissible purpose’ and some states may require proof of this with a signed release. Each state establishes their own level of information and the length of reportable data for employment searches.
You must have a legitimate permissible purpose to pull any credit report. Inform members of your staff who are authorized to pull credit reports that it is a violation of Section 604 of the Fair Credit Reporting Act to ask for a credit report without a legitimate permissible purpose. It is a violation of the law and may provide the subject of the report with grounds for a damage suit.
For pre-hire situations, we offer the SSA program called Consent-Based SSN Verification Service. This product will confirm that an SSN and name actually match in the Social Security Administration (SSA) database.
Post-hire, you have several options. Hire Level offers E-Verify service to confirm employment eligibility for newly hired employees. E-Verify runs the SSN against Social Security Administration and Department of Homeland Security databases to make sure the SSN and name match, as well as determine that the individual is indeed eligible to work in the United States. Clients may utilize E-Verify through Hire Level or directly with the government.
In addition, employers can contact the Social Security Administration directly to confirm a social security number belongs to a specific person. To confirm via telephone, call 1-800-772-6270. Alternately, employers can utilize the SSA’s internet based service called Social Security Number Verification Service.
Your background searches should be predicated on the position for which you are hiring, not on the individual you are hiring. In other words, define your searches based on the needs of the job and apply it consistently for all applicants.
We prefer that you have the applicant contact us directly so that we may gather information from them regarding the dispute. Based on the information provided by the applicant/employee, we will run the search again at no charge and either correct the information found or confirm the original information. We cannot guarantee that information belongs to your candidate; we can only guarantee that it is in the public records and matches the major identifiers of your candidate. As the end-user, you are the only one who can confirm the identity of the individual. Only through fingerprints can a true identity be made.
I’ve been told that I should not ask an applicant for date of birth, yet it is required to do most searches. Why the contradiction?
It is not a violation of the Age Discrimination in Employment Act (ADEA) of 1967 to request information such as a date of birth on an employment application or background release as long as there is a legitimate permissible purpose. It is only discriminatory to use an applicant’s age as a determination in offering a job. Date of birth (DOB) is one of the identifiers that local and state government agencies commonly use when criminal records are filed. Therefore it is permissible to request it in conjunction with these searches. If you are concerned about this, we will gladly allow the applicant to supply this piece of information directly to us, thus removing the DOB from your pre-employment inquiries.
All of our county searches are “fresh”. Information is retrieved directly from the court of jurisdiction by a researcher who physically visits the court or through electronic access to court records. You will never receive database information from a county level search request.
Contrary to popular opinion, most criminal and other searches are not “available online.” Very few county court records are accessible online, and many require special access procedures and fees. Most of the advertised sources of online criminal history does not come directly from the courts, but is retrieved from databases that are not always accurate or current. Always ask CRAs if their searches are direct from the originating source or are they simply pulled from a purchased database.