Employers may run periodic checks, for example, as a way to identify individuals who have a high debt to salary ratio. To an employer, an employee who is overextended financially may be more prone to stealing from the company. There are many companies that specialize in employment screening. The most important thing to keep in mind is that companies conducting background checks fall into several broad categories. This can range from individuals commonly known as "private investigators," to companies that do nothing but employment screening, and to online data brokers.
Corporations that employ large numbers of people may have an established relationship with a third-party background checking company or may even use an affiliated company for their employment screening. Other background checking companies may work on a less formal basis with employers. Some screening companies operate in specific areas of the country while others conduct background screening nationwide.
It is easy for employers to gather background information themselves. Much of it is online, allowing employers to access public records and commercial databases relatively easily. Employers should understand that online data brokers may be subject to the FCRA, triggering obligations on the part of the company as well as the employer. In the FTC announced a settlement in a case charging online data broker Spokeo with acting as a consumer reporting agency. It can be accessed for some, but not all, criminal history checks.
Whether an employer has access to the NCIC depends on the kind of job involved. FCRA covers "consumer reports" issued for multiple purposes, and this is a source of confusion to many individuals.
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In addition to covering credit checks, the FCRA also governs employment background checks for the purposes of "hiring, promotion, retention, or reassignment. The FCRA does not require employers to conduct employment background checks. But the law sets a national standard that employers must follow in employment screening.
In some states, laws may give an employee more rights than the FCRA. Yes, if it is not performed by the employer. The background check must be prepared by an outside company -- a "consumer reporting agency" or business that "for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in Under the FCRA, the employer must obtain the applicant's written authorization before the background check is conducted. The authorization must be on a document separate from all other documents such as an employment application.
In California , at the time an employer obtains permission for a background check, the applicant or employee should also be told that he or she may request a copy of the report. The FCRA, in contrast, says the subject is entitled to a copy of the report if a pre-adverse notice is given.
Under federal law, if the employer uses information from the consumer report for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion - it must take the following steps :. Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure.
After the adverse action is taken, the individual must be given an "adverse action notice. Modified disclosure and adverse action procedures apply to positions subject to U.
Department of Transportation DOT regulations such as truck drivers. The DOT has independent authority to set qualifications for workers in transportation industries. According to the FTC, it should not. In addition, the FTC charged the company with failing to follow other FCRA provisions, including failure to provide consumers with a copy of their background check report.
Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. But the records may not completely "disappear" and may still be available to law enforcement. I am applying for a job in a profession that is required by law to perform background checks, such as in law enforcement, childcare, or a hospital.
Will this affect my rights under the Fair Credit Reporting Act? When a specific law requires a background check, that same law usually outlines the rights employees have. These rights may not necessarily follow the Fair Credit Reporting Act, the background screening law that governs "consumer reports. Law enforcement agencies or state licensing authorities may have direct access to state and federal criminal records databases, which many private employers do not have.
A government-run database is not a consumer reporting agency and is not subject to the FCRA. Whether you have a right to get your report or make corrections may be spelled out in the background check forms you signed or perhaps on the agency's website. However, individuals are generally allowed to access their own criminal records files maintained by a state or federal agency. The federal Privacy Act also gives you the right to request records maintained about you.
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To check federal criminal records, contact the Federal Bureau of Investigation. I am an independent contractor.
What are my rights if the employer wants to do a background check? The Federal Trade Commission staff has issued a couple of advisory opinion letters about contractors and the Fair Credit Reporting Act:. Does a nonprofit organization have to follow the FCRA when screening volunteers? Yes, if the investigation is conducted by a consumer reporting agency. Organizations whose employees and volunteers work closely with children, the elderly, or the disabled are most likely to conduct background checks.
Read our guide on volunteer background checks. Does the FCRA require that I receive notice and give authorization at any time a background check is obtained? The FCRA allows a "blanket" authorization. This means a one-time notice and authorization is sufficient to allow the employer to obtain reports at any time during employment.
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The requirement to get authorization may, however, be different under state law. In California , for example, notice and authorization is required "at any time before a report is procured. The FCRA imposes specific obligations on employment screening companies. An employer may also ask you to take a pre-employment physical. If so, the Americans with Disabilities Act requires such requests be made only after a job offer. In both of these situations, the applicant would not have the ability to obtain a copy of the background check to find out what negative information it contained. Where do I go to complain about an employer or a background screening company that does not follow the FCRA?
Complaints should be filed with the Federal Trade Commission. Your state may also have a law that applies to employment background checks. In that case, file a complaint with your state Attorney General as well.
The FCRA includes a private right of action. Consumers may sue for violations. Attorneys who specialize in employment law may be located through the National Employment Lawyers' Association. State and county bar associations are another resource for referrals. First, talk to the employer.
Although the FCRA does not require the employer to hold the job for you, a sympathetic employer may be willing to give you a chance to correct any errors. Next, file a dispute with the employment screening company that made the error. You may first call the company and tell them about the error. Then follow-up with a written dispute letter pointing out the errors in the report. Send your letter certified mail, return receipt requested.
Along with your letter you may submit information that verifies your side of the story. For example, you may have a common name. The background check report may show a criminal record for someone with your first and last name but with a different middle initial. The process for disputing errors in an employment report is the same as the process for disputing errors in your credit report.
After you file your dispute, the screening company has 30 days to investigate. If, during that 30 day period you file additional information, the investigation may be extended by another 15 days. So, 45 days is the maximum time allowed for considering your dispute. If information in your background screening report cannot be verified, it must be deleted. You must receive written notice of the results of the investigation not later than five business days after the investigation is completed.
Background Checks: What Job Applicants and Employees Should Know
You can ask the screening company to send the revised report to anyone who has received an employment report about you within the last two years. You also have the right to receive another free copy of your report within 60 days. I want to file a lawsuit against a background check company for reporting inaccurate information on my background check, because it cost me my job.