What are the legal responsibilities of landlords and employers as per FCRA law?
There are strict legal responsibilities for Landlords and hiring employers, as are legally empowered by the Fair Credit Reporting Act (FCRA) to conduct background checks on new applicants, before making their final decision. In fact, this can even be considered a necessity in these tumultuous Covid-19 times, as every person in this country puts their best foot forward to revive the economy. However, there are also legal responsibilities associated with this course, based on each state’s implementation of FCRA guidelines.
Here are 5 things to know so you are always on the right side of the law.
1. Purpose, First
We all take our privacy seriously. Fortunately, the US Federal government supports this intent, as the FCRA was first introduced in 1970 to safeguard our private information from misuse by third parties. This includes credit information, personal information (like usage of medicinal drugs, etc.), and even criminal background information. Accordingly, a third party needs a “permissible purpose,” in order to access this personal information.
Hiring the candidate for a job (by an employer), or renting property to a candidate (by a landlord), are both acceptable purposes to retrieve this information. However, this also needs to be accompanied by:
- Prior consent of the candidate, before a background check, is conducted on him or her.
- Discrimination free processes that are consistent across all candidates vying for a job or property.
2. Certified by law
You may think that this is a natural offset of (1) above. This is not exactly true. As a landlord or employer, you may have a permissible purpose to run a background check on a candidate. However, there are still FCRA guidelines that determine how this information is reported and used, including the intent of usage.
Furthermore, these may vary by state and are frequently updated. For this reason, it is best to work with a government certified reporting agency, so the legalities associated with background screenings are always maintained.
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3. Legal notification
Now consider that you outsourced a pre-employment screening to a certified company. Based on the information presented in the background check report, you decide to reject a candidate.
This needs to be accompanied by the following paperwork associated with your legal responsibilities.
- Statement capturing the contact information of the certified reporting agency. They also need to provide a statement that they did not influence your decision in any way (other than providing the report in line with FCRA guidelines).
- Notification to the candidate, in line with FCRA’s pre-adverse action guidelines. According to this, the candidate is allowed to request a copy of their background check report, free of cost, within a 60-day period. They are also allowed to challenge any information presented in their report.
With this, the candidate has a 60-day period to respond to your pre-adverse action notification. The final decision to reject a candidate can be concluded only after this 60-day period.
If a candidate has been subject to faulty or fraudulent reporting in the past, he or she may set up an alert notification on their personal account, to avoid this happening in the future. (A smart candidate will do this anyway.)
In this case, the third-party reporting agency is obliged by law to confirm all information captured in the report, with the candidate, based on the contact information provided, before the final report is passed on to the employer or landlord. If you are hiring a reporting company for your screenings, ensure that they are in adherence to this guideline.
In some cases, this can cause delays, especially if the candidate has provided contact information that is different from what is captured in the report. (This has its own due process for consumer updates.) Be prepared for this as part of your hiring timelines.
This comes back to the first point about protecting people’s privacy. A candidate’s background report contains sensitive information and should be handled accordingly once you have completed the hiring process. For this, ensure that you dispose of background reports in line with FCRA guidelines in your state.
Whoever it is, legal responsibilities for Landlords and hiring employers to conduct background checks are critical and require attention from both.
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