Background Checks – Fair Credit Reporting Act (FCRA)

Pre-employment investigations are important to ensure that the applicant is the best qualified individual and that the information provided by the applicant is tested for accuracy and validity.  Most Florida employers conduct a criminal background testing of applicants.  When your business uses a vendor to conduct these tests, you must follow the requirements of the Fair Credit Reporting Act (FCRA) and the recent guidance by the Equal Employment Opportunity Commission (EEOC) on using criminal background checking on applicants.

Sample Background Checking Procedures

To comply with federal law governing background check procedures, (insert company name) (“the company”) should follow the steps outlined below.  The company’s third-party background check vendor, [insert vendor’s name], has a process that will allow the company to follow these steps.

The Company will only conduct background checks on employees/applicants once the company has obtained a signed “Disclosure and Consent to Request Consumer Report Information” form. This form will be included in all new hire packet forms. A copy of this signed form will remain in the company’s records. An English and Spanish version of this form is included in the new hire paperwork.

Also included in the new hire packet is a form titled, “A Summary of Your Rights Under the Fair Credit Reporting Act” document.

The company must make a conditional job offer to an applicant conditioned on the applicant’s successful completion of a background check.  If the individual is a current employee, the company should simply inform the employee that it will be conducting a background check on the employee (and re-execute if needed).

If the results are clear, then the company does not need to take any further action.

If the results contain a record unacceptable under our requirements (according to the background check matrix of job related convictions), then the company must provide the applicant/employee with the following:

  1. A copy of the entire background report;
  2. A copy of the “A Summary of Your Rights Under the Fair Credit Reporting Act” form provided by the background check vendor
  3. A Pre-Adverse Action letter prepared by the company (and if in California, the California Statement of Consumer Rights form).  The Company will reference all state FCRA Rulings to determine if any other state requirements are warranted.
  4. If the background check was conducted on an applicant, do not assign an applicant to company jobs during this time.
  5. If the background check was conducted on an employee, the company should continue assigning the employee work during this time.
  6. After 14 days, if the employee/applicant does not wish to contest the results of the background check, the company must provide written notice of termination or withdrawal of the conditional job offer (Adverse Action Letter).

The Adverse Action letter must state: the background check vendor’s name, address, and telephone number; a statement that the vdnor did not make the decision to withdraw the conditional job offer/terminate and is unable to provide the applicant/employee with specific reasons why the offer was withdrawn or the termination occurred; the adverse action letter communicates to the applicant they are no longer being considered for employment and the decision was influenced by the Consumer and/or Investigative Report made at the company’s request and provided by the vendor.

Enclosed with the Adverse Action letter must be the following: a copy of the entire background report; a copy of the “A Summary of Your Rights Under the Fair Credit Reporting Act” form provided by vendor; and if in California, The California Statement of Consumer Rights form.  State FCRA rulings will be reviewed to determine if any state requirements are warranted.

All background check results, pre-adverse and adverse actions shall be kept apart from the employee’s personnel file, and in a separate file.  These files shall be kept by year, then by month and then by alphabetical order of the employee/candidate’s last name and then by employee number.

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