The Federal Fair Credit Reporting Act (FCRA) governs pre-employment screening and violations of this act can have serious legal ramifications.  In this situation, the FCRA was designed to protect the individual consumer and his/her privacy.

The FCRA is the Federal Fair Credit Reporting Act, which is the governing act applicable to pre-employment screening.  The FCRA stipulates that certain forms and procedures be followed in order to preserve the rights and privacy of applicants.  Violations of the act may create substantial legal  ramifications.

The FCRA governs all background searches, not just credit reports.  The Act defines permissible purposes, how the information is handled, what procedures and documentation must be followed, and even defines the procedures for when an applicant is denied a job based on the results.  There is a great deal more to know about the FCRA, and we recommend all HR personnel be aware of the impact this act has on your employment decisions.

 It all depends on why you are not hiring them.  If the background search revealed information that caused this adverse action, then you are required by the FCRA to notify the applicant of your intent not to hire them, issue a copy of their Summary of Rights, and supply a copy of all the background reports gathered.  After allowing them time to dispute the results, you must then notify them that their application has been terminated. 

Your background searches should be chosen according to the position for which you are hiring, not on the individual you are hiring.   In other words, define your searches based on the needs of the job and apply it consistently for all applicants.  A 5D Investigations Specialist can help you design specific packages based on:  position type, level of authority for the position, education requirement, professional license requirement, driving requirement, and the specific labor market.

You are not allowed to use the DOB as a determination in offering a job because that would be discriminatory.  However, DOB is one of the identifiers that local and state government agencies use when criminal records are filed.  Therefore it is permissible to request it in conjunction with a pre-employment screening.  If you are concerned about this, 5D Investigations will gladly allow the applicant to supply this piece of information directly to us, thus removing the DOB from your pre-employment inquiries. 

All procedures comply fully with applicable legal standards.  By using 5D Investigations, employers legally protect themselves and ensure that the rights of their applicants are being respected.  As an additional service, 5D Investigations will provide an applicant with the appropriate notices of adverse action required by the FCRA when requested to do so by the employer. 

The FCRA is the law that allows the applicant to have a copy of our reports and to challenge it’s accuracy.  The EEOC regulations allow you to pre-screen applicants, but prohibits you from making hiring decisions based on sex, age, race, etc.

Absolutely!  Misstatements on an application are grounds for dismissal of an employee or denying an applicant.  In fact, if you hire a dangerous or unqualified person into a position where they could harm others, and a reasonable inquiry would have revealed that information, you can be held liable for the employee’s acts. 

You could hire that person contingent upon a successful background check.  If you find that the person made misstatements on their application or resume, that is grounds for dismissal.  Remember that our applicant consent form is your first line of defense.  If they know that you are going to verify information, they are much less likely to misrepresent themselves. 

Public records or not, if it is for pre-employment screening purposes, the FCRA requires that a release be obtained from all job applicants. 

In our opinion, they are not!  Although many states offer this level of search, there is still a lack of sufficient information to make realistic due diligence decisions.  Statewide searches often only contain information from reporting counties, and some states do not require a county's participation – it is strictly on a voluntary basis.  Also, some states have a lengthy turnaround time hence causing a delay of your report.  If you do find a criminal record, it still must be confirmed at the county level with a real-time county record check.  

Yes, we can.  However, you must be aware that these are pre-compiled databases which can be out-of-date and can have large gaps in geographical coverage. If you do find a criminal record, it still must be confirmed at the county level with a real-time county  record check.

An instant criminal search is one that accesses a database which is comprised of data provided by various county, state, and federal agencies. It is important to note that the data may not be current due to the lag between the time a suspect is charged or a case has been concluded and the time the data is actually reported to county, state, and federal agencies.  Due to these inherent delays, 5D Investigations recommends performing an on-site search at the county level, in addition to the instant  search, to ensure that the data collected and reported is complete and up-to-date. 

An instant search is only as accurate as the local, state, and federal agency reporting the data.  Instant database searches can be updated as frequently as daily or as infrequently as semi-annually. 

 Yes.  However, there are some critical points to consider.  1. The FCRA has stated that if an archived database returns a hit, the background screening investigation company is required to do a real-time county check to verify and confirm the information received from the archived database.  2. Archived databases are just that – archived!  The information contained may not be and often is not current.

In most counties and states they are housed in the same court and therefore available together.  Those counties that do not house their criminal records together require a separate search and  additional fees. 

There is no set limit.  At the very least, determine where the applicant has lived and worked in the last 7 years and make this the basis for your searches.  Also, be sure and search using all the names that they have used.  This is not the place to skimp.  If someone has a record, they may very well move to get a fresh start in a state or county where they have no records, so don’t limit your search to where they have lived the longest or most recently. 

The courts set the fees that are required.  Only a small percentage of courts require payment of fees. 

No, they are not considered public records.  That means you must have a “permissible purpose” and some states may require proof of this with a signed release.  Each state establishes their own level of information and the length of reportable data for employment searches.