As an expert witness in the background screening industry, and having been involved in over 30 cases, I have seen firsthand the importance of understanding the Fair Credit Reporting Act (FCRA), as well as other state and federal laws, when it comes to employment background checks. These laws are designed to protect the rights of job applicants and employees, and companies that fail to comply with them can face significant legal repercussions.
The FCRA is a federal law that regulates the use of consumer credit reports for employment purposes. It sets guidelines for how employers can obtain and use consumer reports, and it also gives job applicants and employees certain rights. For example, under the FCRA, employers must provide a clear and conspicuous disclosure that they may obtain a consumer report, and they must obtain written consent from the applicant or employee before doing so. They also must provide a copy of the report and a summary of rights under the FCRA before taking adverse action based on the report. This only scratches the surface of requirements and plaintiffs counsel has filed hundreds of lawsuits on highly technical violations of these laws.
In addition to the FCRA, employers also need to be aware of other federal and state laws that govern background screenings. The Equal Employment Opportunity Commission (EEOC) has issued guidance on the use of criminal records in hiring decisions, which stresses that employers should consider the nature of the crime, the time that has passed since the crime was committed, and the job-relatedness of the crime when making hiring decisions. Many states also have laws that regulate background checks, such as the California Consumer Privacy Act (CCPA) which sets additional requirements for data handling and the rights to data access, deletion and opt-out for California citizens.
When conducting background screenings, it is important for employers to understand the legal requirements and to implement a compliant process. This includes having a specific, job-related and consistent policy and practice of conducting background checks and a compliant disclosure, authorization and adverse action notices. It also includes regularly training their staff who conduct or utilize background screening reports.
As an expert witness in the background screening industry, I have helped many companies navigate the complex landscape of background check laws, and I have seen the legal and financial consequences that can result from non-compliance. In my experience, companies that take the time to understand and comply with the FCRA and other laws are better equipped to make fair and informed hiring decisions, while also minimizing their legal risks. However, that doesn’t stop lawsuits from being filed, defending consumer reporting agencies against class action lawsuits is best done when CRA’s have tight operating procedures. Quite simply using these procedures to show that a mistake was not systemic but just human error can save companies millions of dollars in a settlement.
In conclusion, background screenings are important for employers when hiring new employees. However, the FCRA and other state and federal laws have a major impact on the process and it's essential for the employers to be well-informed about the legal requirements and implement a compliant process. Proper guidance from an expert witness during a lawsuit will help attorneys to minimize the legal risks associated with employment background checks and make fair and informed hiring decisions.
Contact us today if you’re looking for an expert witness specializing in background screening, human resources, FCRA, EEOC and state specific laws.
Best,
Jason
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