The Integrity News
Vol. XIII No. 6
ISSN 1081-2717
"objective risk management services"
March 15, 2004
In the last few months a new gimmick for job
applicants has been made available on major job
boards, and now this scheme is available to job
applicants in the form of a kit in retail stores.
For a fee, using the software supplied, a job
applicant can connect to a commercial database
from their PC and check their own background
to see some of the things that you, the employer,
might find in their records when you check.
It is OK for a consumer to check on their own
records, but the database vendors have gone one
step further. They issue a "Seal of Approval" for
the job applicant to affix to their resume that is
supposed to say to the potential employer: "look
at me, you don't need to check, I volunteered to
check myself, and my record is OK". ( This is
amazing considering the fact that the FCRA only
allows employers to make employment decisions
that may lead to an adverse action to be based
on freshly retrieved data and the databases by
definition are stored data and incomplete. )
STORED DATA -- Connecting to a database
means that the
applicant is getting stored data. The Federal Government
does not allow the use of stored data for employment decisions
that may be adverse because the data is usually very stale and
does not tell the true story about the applicant. Federal law
requires that any background check report must contain the
SAME information that the Source (court, DVM, etc) contains
on the date that the report is created. This is only possible
with freshly retrieved data.
POINT: If an employer accepts a background
check based on the "Seal of Approval" they are
utilizing stored data which is illegal for employment
decisions that may lead to an adverse action.
TIME GAPS -- There is a time gap between
when the vendor's
database was last updated from the Sources and the date of the
inquiry. Some vendors on the Internet state that their
database was last updated 24-36 months previous. The largest
database vendor "guarantees" that their driver's license
histories are never more than 30 days old. That is illegal
when the record is actually required to be what was in the file
on the date the report was created. While a "clear" report is
not adverse to the applicant, the employer has no way of
knowing what has been recorded in the applicant's file during
the time period since the database was last updated
( the TIME GAP ).
POINT: An employer could unknowingly be fooled
into accepting a report that in fact does not reveal
recent convictions.
PROPER PAPERWORK -- Anyone familiar
with legal
background checking knows that the applicant must be given
a Disclosure Statement along with a copy of Their Rights
Under The FCRA, and they must Authorize any background
check in writing before it is done. If an adverse action
results, the applicant must be given an Adverse Action Letter
along with a second copy of Their Rights Under The FCRA, and
a FREE copy of the background check report which in whole, or
in part, caused the employer to take the adverse action.
POINT: The amended FCRA gives the Attorney
General of each State the authority to audit
( usually through the State's Labor Department )
the Federal compliance paperwork. Using the
"Seal of Approval" scheme does not provide the
employer with any paperwork that matches the
background checks that the job applicant claims.
EMPLOYER LIABILITY -- Most employers
know that: (1) court
records, credit histories, and reports from other Sources
too, can and do
contain errors, and (2) the ONLY person who
can get a record corrected at any Source is the actual person
whose record it is. Employers make good faith decisions
based on the background check reports that they purchase, and
along with their background check retrieval firms, they need
to be protected from liability for the erroneous data that may
be provided by a Source.
POINT: The FCRA allows an applicant time to
correct an error at a Source, knowing that only
the applicant can do that. Therefore, employers
need to use a written Authorization from the
applicant that is actually an "Authorization and
Release of Liability". Only the applicant can
insure the accuracy of their own records, so the
applicant MUST be the one to Release the users
of their records from any Liability.
SECOND POINT: When an applicant uses a
database, there are actually TWO fundamental
sources of error --- those errors referred to above
from the Sources, and those created by the vendor
who makes additional storage errors on the few
occasions when he updates the database he sells.
THIRD POINT: This new scheme doesn't even
mention the topic of Employer Liability that arises
from what they sell !!! Obviously.
SELECTIVE RETRIEVAL -- Employers do
background checks
to VERIFY what an applicant has told them. If the job
applicant is the one who selects what to check, and where
to check, to get the "Seal of Approval", who knows what has
been intentionally avoided or bypassed ?
POINT: The employer needs to review the Job
Application, the Resume, and the Interview Notes,
and decide where and what to check. Otherwise,
the employer can be exposed to someone's devious
selective-checking scheme.
There are other aspects of this new scheme that
try to equate the ownership of a business license
with the FCRA requirement of a "permissible
purpose". Merely, having a business license does
NOT provide a permissible purpose.
Then, the advertising that accompanies the kit
tries to say that public data are not governed by
the FCRA. The FCRA governs ALL reports on
consumers, including job applicants, when money
(or as the law states, "consideration") is exchanged
for the background check reports.
Finally, laws other than the FCRA apply when an
employer is background checking. There are State
laws which impose strict requirements on the way
that certain background checks are obtained. This
new database scheme ignores ALL of those laws.
If you have previously asked us to send you the
FCRA paperwork as an email attachment to our
instructions for legal background checking, please
refer to one of the last sentences in that email. ie:
"If this all seems strict, it is because most of the
offerings on the Internet are in one or more ways
illegal."
To discuss any aspect of freshly retrieved data, or
the proper procedures for background checking,
with no obligation, feel free to call The Integrity
Center, Inc. at (972) 484-6140. Helping you with
your Risk Management is what we do.
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