Compliance with Federal Credit Reporting Act critical when performing background and credit checks

McAfee & Taft attorney Michael Avery was featured in The Oklahoman explaining that employers wanting to do background and credit checks on applicants or current employees must with the Federal Credit Reporting Act (FCRA).

“Under the FCRA, if an employer intends to use the information contained in the report to make an employment decision, the employer must ‘clearly’ and ‘conspicuously’ disclose its intention to do so in writing to the targeted applicant or employee,” Avery told The Oklahoman. Following the discussed intentions, employees or applicant must sign a written authorization to conduct the check.

Avery explained that employers are allowed to use the information gained to reject an applicant for employment or take an adverse employment action if FCRA requirements are followed. However, before any adverse action is taken, employers must provide a copy of the report to the employee or applicant along with a statement of the individual’s rights under the FCRA.

“The FCRA further requires employers who take ‘adverse actions’ based in whole or in part upon any information contained in such a report to: (1) provide notice of the adverse action to the applicant or employee; (2) provide the applicant or employee with the name, address, and telephone number of the consumer reporting agency who furnished the report along with a statement that the reporting agency did not make the decision to take the adverse action and is unable to provide the applicant or employee with the specific reasons the ‘adverse action’ was taken; and (3) provide the applicant or employee with notice of his or her right to obtain a free copy of the report within 60 days and right to dispute the accuracy of the report with the consumer reporting agency.”

Failing to comply with the FCRA requirements will make an employer civilly liable to the applicant or employee. This could amount to damage costs, attorney’s fees and punitive damages when appropriate.