If Being "Proactive" is a Management Objective, This is a Good Year

At the beginning of the calendar year, many in-house counsel and human resources professionals embark on taking steps to meet their annual management objectives. If history is any guide, many human resources professionals and in-house counsel have as one of their objectives taking “proactive” steps to minimize risk to their organizations. For those who have such objectives, the changes in the legal landscape provide fertile opportunities under (1) wage and hour laws; (2) background screening; and (3) policies and procedures, including related to equal employment laws.

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Fair Credit Reporting Act Requirements

Recently, a class action was filed against a major employer alleging that the company violated the Fair Credit Reporting Act (FCRA) by not providing applicants with proper warnings or the opportunity to correct mistakes in their records. These types of lawsuits are increasing. Failure to comply with the technical requirements of the FCRA may result in significant liability to employers.

The FCRA requires employers that use consumer reports for applicants or employees to (1) notify the applicant or employee that the employer may use the information for decisions relating to employment, and (2) obtain written permission from the job applicant or employee before any consumer report is obtained. Consumer reports include any written, oral or other communication of information from a consumer reporting agency bearing on credit standing, character, or reputation. Consumer reports include credit reports, criminal records and driving records.

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Fair Credit Report Act Responsibilities and Notices

Disclosure and Authorization

Before requesting a consumer report or an investigative consumer report, you must provide the applicant with a clear and conspicuous written disclosure stating that you may request a report. The disclosure must be provided to the applicant in a separate document rather than hidden within an application form. In addition to the disclosure, you must obtain the applicant's written authorization to procure the report. While there is no requirement that the written authorization be separate from the job application, it must be conspicuous.

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