Monthly Archives: December 2012

State of South Dakota Increases Court Records Access Fees
Posted on: December 21, 2012

We received notice today from the State of South Dakota  State Court Administrator that the charge for county level records access as well as the charge for state level records access will increase from $15.00 per name to $20.00 per name searched effective January 1, 2013.

The Adverse Action Process and How It Applies to Employment Background Checks
Posted on: December 18, 2012

Proper Adverse Action procedures benefit the employer and the applicant/employee.  By ensuring this process is in place and occurs, the employer will avoid fines, penalties and lawsuits which are occurring at an alarming rate.  The applicant/employee can ensure their information is correct and contest any inaccurate data.  If inaccurate data is on the report, a full investigation is conducted and the report is updated. This is also the law. If your company is not following these procedures, we highly suggest you work with legal counsel to update your policies as soon as possible. Best practices include:

Before a report is requested:

In a document that is separate from the job application, provide the applicant:

  • A clear and conspicuous written disclosure to the applicant/employee that an investigative consumer report may be obtained for employment purposes including the name, address, and telephone number of the agency completing the report.
  • The nature and scope of the requested report.
  • A check box by which the applicant/employee may indicate that he/she wishes to receive a copy of any report that is prepared.
  • A summary of the applicant’s/employee’s rights to view any files the agency maintains on him/her.
  • The employer must provide a summary of the applicant’s/employee’s rights (FCRA version) to the applicant.
  • The employer must obtain written authorization from the applicant/employee.

After a report is received:

  • If the applicant/employee indicated by the checkbox (mentioned above) that he/she wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the applicant/employee within three business days of the date that the report is provided to the recipient. The recipient may contact your company or the agency that completed the report to receive a copy of it. The report shall contain the name, address, and telephone number of the agency who issued the report.
  • The recipient shall use the report only for employment purposes and only for the employer’s own use.
  • If a report contains a notice of address discrepancy, the recipient should employ reasonable policies and procedures to know the identity of the person to whom the report pertains.

Before Adverse Action is taken:

Before taking any adverse action, based at least in part on information obtained from an agency,

  • The employer must supply a “Pre-Adverse Action” notice.
  • The employer must provide the applicant/employee a copy of the report.
  • The employer must provide the applicant/employee with a copy of “A summary your rights under the FCRA”.
  • can automate the Pre-Adverse Action process for you.
  • Login to your user portal to order the Pre-Adverse Action Letter to meet the requirements above.
  • We recommend waiting at minimum five working days before sending your official adverse actions letter to your applicant. This helps ensure enough time is given to your applicant to dispute any discrepancies found on the report.

Adverse Action notices:

Any adverse action under circumstances in which a report regarding the applicant/employee was obtained from an investigative consumer reporting agency, the user of the investigative consumer report shall advise the applicant/employee against whom the adverse action has been taken and supply the applicant/employee a written notice of the adverse action, including

  • A statement of the applicant’s/employee’s right to dispute directly with the agency the accuracy or completeness of any information provided by the agency.
  • Provide notice of the adverse action to the consumer.
  • Provide the consumer with contact information for the CRA that prepared the report.
  • Provide the consumer with “A summary of rights under the FCRA.”

 Do you currently have a compliant Adverse Action program?

With our Automated Adverse Action program in place you will have taken a big step toward eliminating a looming potential legal liability that is created when you make the decision NOT to hire someone based even partially on information contained in their background check.

Our program is inexpensive, comprehensive and very easy to use. Contact and learn how we can simplify compliance for you.

The FCRA and Background Checks
Posted on: December 17, 2012

When an employer uses a third party (a Consumer Reporting Agency) to conduct background checks the information compiled and reported to the employer by the Consumer Reporting Agency is considered a Consumer Report.

The Fair Credit Reporting Act is the federal legislation that sets specific rules and requirements for the use of consumer reports in the employment setting.

Historically the jurisdiction of the Federal Trade Commission, it appears that the newly formed Consumer Finance Protection Bureau will also have a role issuing new rules under the FCRA in the future.

Individual states and even many municipalities may have additional rules that impact the use of consumer reports.

Bottom line?

Background checks are an excellent and cost effective way support your efforts to exercise due diligence and avoid negligent hiring claims.

When using background checks in the employment setting you must follow the letter of the law to avoid creating one type of liability while attempting to mitigate another!

Over the next few days we will examine the FCRA and provide you with simple steps that will help you to examine your current practices and make any necessary changes to insure compliance.

3 Key Steps For Considering Arrest Records When Making Employment Decisions
Posted on: December 14, 2012

While many jurisdictions allow the reporting of arrest records to be included as a part of an employment background check some states and municipalities restrict them entirely. An arrest record is simply the report of the arrest of an individual without further disposition information.

Guidance from the EEOC states that an employer can not use arrest records alone to deny or terminate employment.  

However, EEOC guidance does permit employment decisions to be made based upon the conduct underlying the arrest.

Following these 3 steps will help you remain compliant: 

  1. The employer must determine that the underlying conduct may be relevant to and may make the candidate unfit for the position.
  2. Conduct an individualized assessment and take the three Green Factors into careful consideration.
  3. The employer can then make a decision and hire/promote/retain the candidate or move forward with the proper adverse action notifications.

These three steps can help you comply with the FCRA and relevant EEOC guidance. If you do not have policies in place to support this type of decision making process consult legal counsel and always build your foundation on solid best practices.

Marijuana Law and Employment Drug Testing
Posted on: December 13, 2012

Washington and Colorado have now passed laws making marijuana legal for recreational use and if history is any indicator of future trends there will most likely be a number of states that follow this path in the years ahead. Please bear in mind as you read this that marijuana is still illegal for any reason at the federal level.

Where do these changes leave employers in Colorado and Washington State who utilize drug screening as a tool to maintain a drug free workplace?

The majority of employers who utilize drug screening are doing so because of industry or federal mandates, such as employers in the healthcare, transportation, aviation, and other similar industries.

Even without industry or government mandates, employers who have drug screening policies in place are generally making no change to their practices to accommodate these new state laws.

It would appear that as long as marijuana is illegal at the federal level drug testing policies for many employers will remain largely unchanged.

Are you ready for 2013?
Posted on: December 10, 2012

As we have been sharing with you for the past several months, changes to compliance documents are being implemented by the CFPB effective January 1, 2013. If you need guidance, just reach out to us at and we will help you to be prepared.