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Section 603(k)(1) of the Fair Credit Reporting Act (FCRA) states that an adverse action is “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.” These decisions include not hiring, not retaining, employee rejection, or not promoting an individual..

If your company uses a consumer report/investigative consumer report in whole or in part to deny someone employment or promotion, you are obligated under the FCRA to provide BOTH the pre-adverse and the adverse action notifications to those applicants or employees.

The employee notification must contain information stating that an adverse action employment action will be taken, a copy of the consumer report or investigative report, and a summary of the applicant’s/employee’s rights. The disclosure must also include the consumer reporting agency’s name and contact information. Once the applicant/employee receives the disclosure, he or she must be given reasonable time to dispute the information. While there is no time limit specified in the FCRA, legal opinion states five to seven business days as reasonable. KRESS gives 14 calendar days between notices.

The adverse-action notice contains wording similar in nature to the pre-adverse action notice and must be done in a reasonable amount of time after the pre-adverse action notice. The disclosure informs the applicant/employee of the final decision made by your company in not hiring, not retaining, or not promoting an individual.

Yes. Both are required under the FCRA.

Legal opinions have varied; however, there is nothing in the FCRA that states an employer or recruiter must consider any correction that a reporting agency may make. The job should be kept open during the five to seven business days to allow the applicant to dispute the adverse information, but after that, whether or not the information is disputed by the applicant, the employer can make a hiring decision. An employer may choose to wait until the dispute is resolved, but there are no requirements in the FCRA to hold a job open for a long period of time.

Failure to comply with the Fair Credit Reporting Act imposes civil liability, which may result in litigation and costly penalties for your company.

An Individualized Assessment ensures that a criminal record is reviewed in the context of the job the applicant is being considered for. Before denying employment, the employer must assess:

• The nature and seriousness of the offense
• The time elapsed since the offense or sentence completion
• The relationship of the offense to the duties of the position
• Any evidence of rehabilitation, mitigating circumstances, or inaccuracies

This assessment must occur after a conditional offer is made but before a pre-adverse action notice is issued.

KRESS has created a seamless automated HR tool for the adverse action notification by completing this entire process for you. Once you have determined you will not be hiring a potential employee based on the consumer report we provide you, simply contact us or log into your account online to begin the process, as we will not send the candidate or employee notifications without your approval to do so. Once the notifications have been mailed or e-mailed, you will receive copies of the letters in a final report for your records.