As mentioned in our previous posts, an employer must navigate candidate and employee background screening with extreme caution.

This is especially true if the employer takes any action adverse to the interests of the candidate based wholly or partly on the screening report. To minimize the risk of litigation, so-called adverse actions must be pursued according to a demanding series of requirements.

To be clear: these requirements should be met before denying employment or promotion based on the results of a screening.

  • The candidate must be provided a copy of the background report, a summary of his or her rights, and a formal notice of the intended action and the reason for it.
  • Next, the employer must give the candidate a reasonable period of time to respond to refute any of the data on the record, explain mitigating circumstances, and/or argue why the issue in question is not relevant to the job. The Federal Trade Commission has opined that a five-day period should be provided, though local jurisdictions differ, with New York City allowing only three days from the date the candidate receives the notice San Francisco allowing seven days. Note, too: mail delivery times vary.
  • Last, the employer must formally advise the candidate of the final decision (for example, withdrawal of a job offer or termination.) Additionally, the candidate must be provided contact information for any relevant consumer reporting agency, along with the employer’s avowal that the agency is not the decision-maker and cannot explain the reason for the decision. It is best to do this in writing to ensure that all the requirements have been satisfied—and to be able to prove it if necessary.

“Although this chain of notifications is not highly complicated, it is nevertheless an exacting process,” said Pamela Q. Devata, leader of the Background Screening Compliance and Litigation Defense team at the law firm Seyfarth Shaw. “It would be HR malpractice not to meet these obligations.”

To learn the basics of avoiding being run over by the class action juggernaut, stay tuned for our next post. You can also read more about individual assessments here or view our webinar.

Global HR Research stands ready to assist employers via a platform of cutting-edge services. GHRR combines advanced screening technology, data, and business analytics to deliver better alternative background screening solutions supporting thousands of customers and their candidates. Serving small businesses to Fortune 500 companies and accredited by the National Association of Professional Background Screeners, GHRR is recognized by the Background Screening Credentialing Council.

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