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What is Adverse Action . . . And why is it important to me (you)?

Posted on 02/01/2015

by Russ Rosenberg

Adverse Action is the process as defined under the FCRA that should be followed if an employer is going to deny employment to an applicant based wholly or in part from information the employer received from a background check.

If you have been to one of my presentations, you have undoubtedly heard me say that a background check’s main purpose is to confirm a hiring decision. It should not make the hiring decision for you, rather it should validate the decision you have already made.

In days past, prior to the current scrutiny employers receive for their business practices, a hiring decision could be made without fear of a lawsuit or any threats by the government. This is no longer the case. Lawsuits brought by individuals and the Consumer Financial Protection Bureau (CFPB) have brought the methodology used by employ- ers under fire. Actions filed against large companies like Pepsi, BMW, Dollar General, Chik-Fil-A and others have brought out several shortcomings in the process. Many companies use database providers for their background screening, knowing that they are receiving suspect information.  If you are reading this then you are not one of them. However, the rules apply for all background checks so you should be in compliance with the Adverse Action rules.  The good news is it is not complicated and can be managed electronically on the Asset Control website.

As a client of Asset Control, the service option of sending Pre-Adverse Action and/or Adverse Action letters on your company’s behalf is a click away. What is a Pre-Adverse Action letter and how does it differ form an Adverse Action letter?    Here is a brief explanation of this two part process.

A Pre-Adverse Action letter should be sent as soon as information is received from the Consumer Reporting Agency (Asset Control) that might impact the hiring decision. The letter and a copy of the Applicants Rights and the actual report are supplied to the applicant for review. The applicant has a reasonable time to dispute any dis- crepancies (typically 7 days). If there is a dispute, the CRA must reinvestigate at no charge and provide a corrected report to both the applicant and end user (you), if there are any changes to report.

Once the waiting period is over, an Adverse Action letter should be sent. This notifies the applicant that he or she will not be employed with your company, wholly or partially based upon information within their background re- port.   Accompanying this letter is another copy of their Summary of Rights under the FCRA and an updated (if any) copy of the report.  This is your final action.

A couple of notes:

  • You do not have to hold a job for someone during this process. You should however consider that you wanted to hire this person anyway, so in the interest of fairness and ethics they should not be penalized because of an error on the part of the court.
  • Often there can be a minor error, such as a date or an amended charge that wasn’t captured. This may not func- tionally change your decision process.
  • Applicants with records often try and hide them by altering DOB or SSN’s. We usually find this and often this makes the searches take longer sorting out the inaccuracies. Most people know their own identifiers but it is important for you to verify the DOB and SSN you are given prior to submitting the application to ensure a timely process.
  • Typically a person is identified by name and DOB. People with common names can make this problematic. Middle names, Drivers License numbers and previous addresses are also critical.

 

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Testimonials

North Texas Food Bank has been using Asset Control's background check services for several years now. We are excited to use a product that provides the necessary pre-employment information our organization requires. We are confident that the information Asset Control provides is reliable, and we will continue to use its services. The service is quite economical and the turnaround time is exceptional.

- La Shonda R. Jackson, Human Resources Director
North Texas Food Bank

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Denton, Texas 76201