April 10th, 2018 | Joe Rotondo, Sterling Talent Solutions

Answers to Your Top FCRA Questions from Sterling’s Q1 FCRA Webinar

Background screening is complicated. For those, employers and candidates alike, that are not familiar with background checks, there is a lot to learn.  One of the most important things to remember is that the background screening industry is highly regulated by various local, state and federal laws. Employers need to be familiar and compliant with these regulations when hiring new employees.

Sterling feels that it is important to be a source of the latest updates about compliance changes. Sterling conducts a quarterly FCRA Compliance webinar series to keep attendees current on the latest  Fair Credit Reporting Act (FCRA) compliance updates and legislation impacting the background screening industry. We received quite a few questions throughout our Q1 webinar. Joe Rotondo, Sterling’s Vice President of Compliance, answered the top nine questions from the FCRA webinar below:

Sterling FCRA Webinar Questions and Answers

1. Do I need to get a new consent form if I do a post-employment background check if the employee has signed the authorization during the pre-employment process?If the disclosure has continuing consent language, it is not necessary to get further consent. The exception to this rule is California, where employers need to get consent each time they want to conduct a background check on a candidate or employee.Sterling provides a sample disclosure form which does contain the continuing consent language. This means if you are utilizing Sterling’s electronic disclosure forms, you are covered for continuing consent and do not need to obtain a new disclosure form each time you want to conduct a background check.
2. Is a new authorization needed every year to run a DMV check?Again, if your disclosure has continuing consent language (and your organization is not located in California), you do not need to obtain a new disclosure every time you want to rerun a service.
3. Should I remove the criminal history question from my application even if my company is not in one of the jurisdictions that have passed a Ban the Box law?It is best practice to remove the criminal history question from the application, even if there is currently no ban the box laws in your area, especially if you are running a thorough criminal history search you are going to find out that information that the candidate would have disclosed.
4. Is there a reason why non-convictions are placed on the record when you shouldn’t use them anyway? (Which we don’t.)Most Consumer Reporting Agencies (CRAs) will provide all criminal records that federal and state laws allow them to supply. If an organization doesn’t want to see arrest records, for example, Sterling can put a client rule into the system where we would not provide such records to the client.It is recommended that clients allow their background screening providers to give them all the information on their candidates they possibly can. Just because you are presented with the information doesn’t mean you must use it, but it will help you make a more informed decision on who you are hiring.
5. Can you make a decision based on a pending criminal charge?It is recommended that organizations consult their own legal teams when making a hiring decision based on a pending criminal charge.There are certain states which prohibit this practice because the charge is not yet a conviction. However, there are also states where you can use pending criminal charges to deny employment.
6. Do I need to send Adverse Action letters when I do not hire someone based on a failed drug test?Sterling recommends to our clients that pre-adverse and adverse action letters should be sent when a candidate or employee has failed a drug screen.
7. What are Violation Convictions and are they included in my background check program?Violation Convictions are not considered crimes in some jurisdictions. They include things like jaywalking, not picking up after your dog or putting your garbage out on the wrong day – actions you would get a summons or a ticket for. In many places, they aren’t even considered crimes and typically will not show up on your background checks.
8. If we are keeping a copy on our Background Screening Provider’s system, do I need to keep a copy for five years?Sterling will always keep the records for the time limits required by the FCRA. This means it is not necessary for you to print, store or retain copies of your background checks. However, if you are collecting paper consent, you must retain a copy.
9. How reliable is the information from a criminal search that is done internationally?Sterling can provide data on the reliability of international searches on a country-by-country basis via our country fact sheets. Some countries have very reliable data; others are more hit-or-miss. You are provided with this reliability rating before you conduct the international checks.

Sterling strives to keep its clients up to date on laws pertaining to the background screening industry. To find out more about FCRA Compliance and information for the background screening industry, listen to an On Demand version of the Q1 2018 FCRA Compliance webinar and sign up for the quarterly updates.

PLEASE NOTE: Documents/presentations should NOT be construed as legal advice, guidance or counsel. Employers should consult their own attorney about their compliance responsibilities under the FCRA and applicable state and municipal law. Sterling Infosystems expressly disclaims any warranties or responsibility for damages associated with or arising out of this document/presentation or other information provided.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.