While most employers conducting a background check on an applicant prior to hiring instances under the FCRA in respect of third party background check procedure, along with any shortcomings, are rare. A recent case can further clarify the background check responsibilities of third parties and employer. In mid 2014 an occupational therapist sought employment with Genesis Healthcare. Genesis requires all applicants, prior to hiring, to pass a criminal background check.

Further to applying for the role the applicant signed the ‘consumer authorization’ which permitted the background check company to share her information with Genesis Health care. Importantly the authority authorized access to her criminal record, work history, credit file and education. This authorization is a requirement when third parties are retained by employers to collate consumer reports under the FCRA.

An offer of employment was made to the applicant subject to a satisfactory background check in line with relevant state and federal laws. A ‘pre screen report’ was then provided to Genesis and it was found that the applicant had previous convictions. The third party was instructed by the employer to fulfill the criminal background check in order to make a more reasoned and objective decision. The third party then completed it’s report and it was found that the applicant had three convictions including a felony in respect of injury to a child.

The health care provider reviewed the report and decided that the applicant did not meet it’s qualification criteria. The third party background check provider was also advised of the decision and as per the FCRA advised the applicant that she could dispute the accuracy of the report if she so wished. Further to a discussion with the applicant by the employer for further clarification an offer of employment was withdrawn.

The applicant then brought a lawsuit against the provider and the employer. She alleged the employer had contravened the FCRA with inaccurate reporting in her background report. Thereafter denying her a reasonable opportunity to counter (she claimed) the skewed report. Claiming that the provider had mis represented her convictions and as a result had lost the opportunity of employment.

While the court found that there was merit in the case it refers, as to the plaintiff, “suffers no concrete harm,”. It also found that the employer did follow guidelines as per the FCRA. The employer also put forward re: state laws towards healthcare and elderly care. The case has highlighted obligations under the FCRA when outsourcing background check applications.

Further documenting hiring decisions especially when the outcome of a background check is a “does not meet”. The case highlights a prospective employer’s obligation to comply with the FCRA when it outsources its application background checks. It also emphasizes the importance of documenting how hiring decisions are made particularly when the results of a background check is as a final determination. To view the full report in detail along with case reference follow this link.

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