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What happens when you don’t do adverse action…

Posted by Marketing Hirease on Feb 6, 2013 9:30:00 AM

adverse actionYou have a lawsuit brought against you and eventually have to pay; at least that is what happened to Kmart. A $3m settlement has been reached in the employment class action pending against the retailer Kmart. The lawsuit claims that Kmart violated the Fair Credit Reporting Act (FCRA) by failing to notify job candidates if they were rejected because of a failed background check. The class includes some 64,500 plaintiffs, all of whom claim they were given an inadequate opportunity to dispute negative background reports, when applying for employment at Kmart. The FCRA stipulates that employers must notify applicants if they plan to take any adverse action such as denying employment, based on a credit report or criminal background check.This lawsuit defines exactly what not to do when taking adverse action against an applicant based on a background check. Adverse Action is defined as if an employer is considering not hiring, promoting, or terminating someone based in whole or in part on the information in the background report they must follow the adverse action process. Here are some tips on what you should do when you decide you need to take adverse action against a job candidate:

  • Provide a summary of rights to all applicants

  • Send pre-adverse letter

–        Allow 5 business days for applicant to dispute before taking action 

  •  Treat all applicants with empathy

–        “Innocent until proven guilty” 

  • Communicate with your background vendor any questions or concerns you have

  • Send a post-adverse letter

  • Make decisions upon disposition information that is FCRA and EEOC

–        Do not automatically disqualify someone based on the report, consider the convicted offense, time since and was it a onetime instance 

  • Have a background policy in place

–        Which jobs have different requirements for severity of conviction 

  • Database records should be confirmed as current and compliant

–        Many times this requires additional research/court validation

–        DO NOT use this search as your only means of a background check, EEOC is targeting this practice 

By using these tips, you can safeguard your organization from costly and negligent lawsuits. These tips also help your organization stay compliant within the FCRA and EEOC guidelines. 

Topics: Hirease, Background Screening Services, In The News

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