Employment Background Checks without Permission? Tisk-Tisk.

In what could become the largest-ever employer-related settlement claim, a Federal Court judge ruled that school bus contractor, First Student, is part of a proposed $5.9 million settlement fixed to criminal background checks that were conducted without written permission.

Perhaps we shouldn’t be shocked to hear that anyone might be doing employment screening without consent from the applicant, but indeed we are. Shocked. The Fair Credit Reporting Act (FCRA) requires employers to obtain an applicant’s written consent before conducting an employment background check. Plus, if an employer wants to take action in whole or in part on the results of a criminal check (or any consumer report for that matter) the employer must meet certain criteria.

The lawsuits alleges that First Transit and First Student – both operated by Scotland-based FirstGroup — obtained criminal background reports about prospective workers without their written authorization and, in some cases, reportedly used the reports to deny employment without first providing individuals with a copy of their criminal background report. If you use employment background checks in your hiring process, take this as a brief yet powerful reminder of your responsibilities under FCRA.  Here are a few requirements that relate specifically to employment screening:

1.       The subject of the background check must be made aware that a consumer report will be used for employment purposes and must agree to such use.  (Remember, a criminal background check falls under the category of a consumer report.)

2.       The employer must supply pre-adverse action notification to the applicant if the information found in a report may – in whole or in part – result in a no-hire decision.

3.       The employer must provide adverse action notification to the applicant if the information found in a report does result in a no-hire decision.

Have questions about your background screening rights and responsibilities?

Ask one of our background screening experts or drop a comment here and we’ll be happy to chat. Looking for more information about background screening? Download our free background screening guide. As always, please note that the information contained within this blog is for informational purposes only and must not be construed as legal advice. Contact a qualified employment attorney if you have legal questions.

About Michael Gaul

Michael is a results-oriented marketing executive with over two decades of experience in employment screening, physical security, and business process management. Michael has deep experience in human capital risk management and a passion for educating business leaders and HR professionals on strategies that tangibly protect their interests. Michael serves on the Board of the Secure Cash and Transport Association (SCTA) and is a member of the National Association of Professional Background Screeners (NAPBS), and the American Society of Industrial Security (ASIS).
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