New FCRA Background Check Forms Required January 1, 2013
Effective January 1, 2013, employers must revise Summary of Rights forms they provide to prospective and current employees as required under the Fair Credit Reporting Act (“FCRA”).
The FCRA is a federal law which applies whenever a covered employer seeks information from a “consumer reporting agency” regarding an individual’s credit, character, general reputation, personal characteristics, or mode of living. A “consumer reporting agency” is defined quite broadly under the FCRA, resulting in an employer being subject to the FCRA simply by using a third-party vendor to conduct background checks on any of its applicants/employees.
Pursuant to the FCRA, an employer is required to provide a disclosure and obtain written authorization from any applicant/employee prior to conducting a background check. Should the employer seek to take an “adverse action” against the applicant/employee based on the background check — which, for purposes of the FCRA is defined as a denial of employment or any other decision that adversely impacts the applicant/employee (i.e., failure to hire, transfer, termination) — the employer must first provide the applicant/employee a copy of the background check and a Summary of Your Rights under the FCRA (“Summary of Rights”) form under the FCRA. It is this Summary of Rights form that employers must revise prior to January 1, 2013.
With President Obama’s signing of the Consumer Protection Act of 2010 (signed into law on July 21, 2010) enforcement powers over the FCRA were transferred from the Federal Trade Commission (FTC) to a newly created Consumer Financial Protection Bureau (CFPB). The CFPB has since issued regulations requiring employers to revise their Summary of Rights forms effective January 1. 2013 to reflect that information about consumers rights under the FCRA can now be obtained from the CFPB instead of the FTC.
Other notice provisions under the FCRA remain the same. After taking adverse action against an applicant/employee based on a background check, the employer must provide the applicant/employee with notice of the adverse action, as well as the name, address and toll-free telephone number of the third-party vendor that conducted the background check, and a written statement that the third-party vendor did not make the decision to take the adverse action and is unable to provide the applicant/employee with specific reasons as to why the adverse action was taken. The employer must also provide the applicant/employee with notice of his/her rights to obtain a free copy of the consumer report within sixty days and to dispute the accuracy or completeness of any information contained in the report.
Further, while the FTC no longer will have primary statutory authority to issue interpretive guidance under the FCRA, the agency on July 20, 2011 issued a Staff Report entitled “Forty Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report and Summary of Interpretations” which compiles and updates the agency’s prior guidance under the FCRA and provides a section-by-section summary of the agency’s interpretations of the Act. The FTC also has withdrawn its 1990 Commentary on the FCRA, which the agency admits had become obsolete as a result of statutory amendments expanding the FCRA in the intervening years.
A copy of the FTC’s new Staff Report can be found on the FTC’s website at http://www.ftc.gov/os/2011/07/110720fcrareport.pdf.
The copy of the new Summary of Rights form which employers are required to use effective January 1, 2013 can be downloaded from the CFPB’s website at http://ecfr.gpoaccess.gov/graphics/pdfs/er21dell.019.pdf.