May 27, 2020

May 26, 2020

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CFPB Issues New Background Check Summary of Rights Form With Imminent Effective Date

On September 12, 2018, the Consumer Financial Protection Bureau (CFPB) issued an interim final rule updating its A Summary of Your Rights Under the Fair Credit Reporting Act form, (“Summary of Rights”) which is required to be given by employers to applicants and employees at various points in the background check process. The effective date for the updated Summary of Rights is Friday, September 21, 2018.

The Summary of Rights must always be included as an attachment/enclosure with the pre-adverse action letter. Additionally, employers should provide the Summary of Rights with, but separate and apart from, the federal background check disclosure if an employer is conducting an investigative background check. Contrary to the practices of some background check companies, and what many employers think, the Summary of Rights is not a required inclusion with the background check disclosures and authorization forms unless the employer is obtaining an investigative background check. (An investigative background check occurs when a background check company conducts personal interviews with information sources, such as references and former employer representatives, who comment on an individual’s performance. Mere confirmation of prior employment (e.g., providing dates of employment, job titles, etc.) is not enough to qualify as an investigative background check.)

Note that although the CFPB technically issued an interim final rule on which public feedback and comments will be accepted until Monday, November 19, 2018, the effective date for the new summary is well before the public comments deadline.

For a redline document showing the differences between the old and the new summary form, please click here

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About this Author

James Silvers, Human Resources, Attorney, Ogletree Deakins Law Firm

Mr. Silvers assists employers with human resources and employment-related matters, including matters related to employee onboarding and background checks, termination, discrimination, and employment contracts. As a member of the firm's Background Check Advice Team, Mr. Silvers regularly counsels clients on practical, lawful ways to comply with the federal Fair Credit Reporting Act, Title VII, and state mini-FCRAs. Mr. Silvers also regularly advises employers on ADA and FMLA matters and RIF matters (including ADEA, OWBPA, and WARN issues).

Gustavo Suarez, Gus, Employment Law Attorney, counseling, background checks, EEOC, Ogletree Deakins Law Firm
Of Counsel

Gustavo (“Gus”) Suárez assists employers with a broad range of employment law issues, including counseling on federal and state background check and e-signature law; investigating and defending EEOC charges; advising on immigration compliance issues (including I-9 training and internal audits); and defending Title VII, defamation, and breach of contract lawsuits against employers.

Gus regularly speaks at employment conferences on topics like background check law, I-9 compliance, and the South Carolina Illegal Immigration Reform Act.

Jennifer Woodruff, Background Check Attorney, Ogletree Deakins Law Firm
Of Counsel

As a member of the firm’s Background Check Advice team, Jennifer offers practical, real-world advice on analyzing, drafting, and implementing valid background check authorization and disclosure forms, pre-adverse and adverse action letters, background check processes and procedures, and other background-check-related documents and communications.

Leveraging her experience for one of the country's largest background check companies, Jennifer provides client consultation on employer background check processes, including best practices related to the federal Fair Credit Reporting Act,...

Stephen Woods, Ogletree Deakins Law Firm, Greenville, Labor and Employment Litigation Attorney

Stephen Woods represents and counsels companies on a wide range of labor and employment law issues—though a significant focus of his practice is on background checks (counseling and litigation) and RIFs (including the ADEA/OWBPA, WARN, and state mini-WARNs). He assists national, regional, and local clients on preventive analysis and advice, class and single-plaintiff employment litigation, and EEOC and state agency charges. He is the chair of both the firm's O-D Comply compliance solutions group and the Background Checks Practice Group and the shareholder-author of the...