July 3rd, 2018 | Joe Rotondo, Sterling Talent Solutions

Answers to Your FCRA Compliance-Related Questions

Sterling feels that it is important to be a source of the latest updates about compliance changes. Sterling compliance expert, Joe Rotondo, hosts a FCRA Compliance Quarterly Updates webinar series to share the latest information on local, state and federal legislation and guidelines that impact the background screening industry and the hiring process. Joe touches upon the background check process, the disqualification process for applicants and employees and how laws such as Ban the Box and Salary History Bans affect a company’s employment program.

Answers to Your FCRA Compliance-Related Questions

We received quite a few questions throughout the webinar. We wanted to share a few answers to frequently-asked questions that Joe answered during the presentation as well as some that we didn’t have time to answer before the end of the hour below:

Can I run the background check before I make an offer of employment?

Our best practice advice is to make an offer of employment prior to obtaining a Disclosure and Authorization form to run the background check.

If someone refuses to sign the Authorization, can I deny them employment?

As I said during the webinar, generally, an employer can make the signing of a Disclosure and Authorization form a condition of employment. However, it would be best to check with your legal counsel.

Do I need to have an employee sign a new Authorization for a post-employment background check?

If the disclosure and authorization has continuing consent language, it is not necessary to get further consent.  The exception would be California, where employers need to get consent each time they want to conduct a background check.

Can you send a pre-adverse action letter to the candidate even if the entire background report is not complete?

It is not a best practice to send the pre-adverse letter prior to the completion of the background check. Simply put, if the letter is sent based on one piece of information, i.e., a criminal record and then other disqualifying information returns later, i.e., a falsified education, you would need to send another pre-adverse letter to allow the candidate to dispute the education information.

How long does Sterling keep background reports?

Sterling will maintain the background reports for a minimum of five years plus the current year.

If Sterling keeps a copy of the background report, do I need to keep a copy?

Sterling will keep the background reports, consent forms, etc. for a minimum of five years plus the current year. This means it is not necessary for you to print, store or retain copies of your background check information. However, if you are collecting paper, you should retain a copy.

Even though my company is not in a location with a Ban the Box law, should we remove the criminal question?

Our best practice advice is 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. Please consult your legal counsel for their advice.

Are Sterling’s criminal record searches done through a database?

Sterling has a Nationwide criminal database product, which is used as a supplement to the primary source county and state criminal searches. All records found in the nationwide criminal database are verified at the primary source.

Can I deny employment for a candidate who has an open case against them?

It is recommended that organizations consult their own legal counsel when making a hiring decision based on a pending criminal charge.

Does Sterling search Family or Juvenile Courts?

Sterling does not search Family or Juvenile court records.

I am located in NYC, should I stop running credit checks?

The credit restriction law in NYC is quite limiting, so I would suggest having your legal counsel review the limited number of exceptions which would allow a credit check to be run.

If I should not consider an arrest record in making an employment decision, why does Sterling provide these records?

Sterling will provide all criminal records that it is legally allowed to report. If a client does not want to see arrest records, Sterling can put in a client rule to not provide such records.

How reliable are the background checks that are done internationally?

Sterling can provide country fact sheets that indicate the reliability of the information in that specific country. Some countries have very reliable data, while others are more of a hit or miss.

If someone fails a drug test, do I need to send the adverse action letters?

If the drug test result is part of the consumer report, we recommend sending adverse action letters.

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 OnDemand version of the Q2 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.