LEGAL AND PRACTICAL ASPECTS OF BACKGROUND CHECKS

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LEGAL AND PRACTICALASPECTS OFBACKGROUND CHECKS
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CONDUCTINGBACKGROUND CHECKS

• Mandatory Checks
• Voluntary Checks
• Common Law Duties

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FAIR CREDIT REPORTING ACT

• Employer
• Consumer Reporting Agency
• Consumer Report
• Investigative Consumer Report

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FAIR CREDIT REPORTING ACT

• Disclosure/Authorization
• Pre-Adverse Action Notice
• Adverse Action Notice

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DISCLOSURE ANDAUTHORIZATION

• May be combined on one document
• Cannot be combined with any other document (i.e.,
  application)

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PRE-ADVERSE ACTIONNOTICE

• Notify that adverse action may be taken
• Provide copy of the report
• Provide summary of consumer rights
• Allow reasonable time to dispute information with
  the employer

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ADVERSE ACTIONNOTICE

• Notify that adverse action has been taken
• Include name, address and phone number of agency
  providing the report
• State that the reporting agency did not make the
  decision to take adverse action and is unable to
  explain reasons for the adverse action
• Notify that individual may dispute the contents
  of the report
• Notify that individual may obtain a copy of the
  report

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PROVIDING INFORMATION TOCONSUMER REPORTING AGENCY

• Provide accurate information
• Dont report information after notice and
  confirmation of error
• Correct and update information if you regularly
  furnish information
• Notify agency of any dispute
• Conduct an investigation regarding disputed
  information and make appropriate reports to
  consumer reporting agency

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FAIR AND ACCURATE CREDIT TRANSACTIONS ACT

• Modified the Fair Credit Reporting Act
• Notice and authorization requirements do not
  apply to investigations of employee misconduct
• Adverse action notices still apply

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TYPES OF BACKGROUND INFORMATION

• Arrest Records
• Conviction Records
• References

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ARREST RECORD

• EEOC Guidance
• Nebraska and Iowa Law

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CONVICTION RECORD

• Federal Law
• Nebraska and Iowa Law

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CRIMINAL CONVICTION RECORD
Considerations

• Time, nature and number
• Facts surrounding
• How bears upon job duties

• Length of time between convictions
• Employment history and
• Rehabilitation efforts.

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REFERENCES

• Defamation
• Negligence
• Misrepresentation

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DEFAMATION

• False and defamatory statement of fact
• Unprivileged communication to a third party
• Fault amounting to at least negligence by the
  publisher
• Accountability of the statement, irrespective of
  harm or existence of specific harm

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DEFAMATION

• Performance-related comments generally
  non-actionable
• Qualified privilege
• Malice
• Self-defamation

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NEGLIGENT HIRING

• Employment Relationship
• Employment Unfitness
• Employers Knowledge
• Injury
• Employers Duty of Care
• Causation

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NEGLIGENT HIRING EXAMPLES

• Hospital Orderly
• Delivery Person
• Hotel Steward
• Mover
• Security Guard
• House Painter

• Electrical Serviceman
• Cable TV Installer
• Real Estate Agent
• Taxi/Courtesy Van Driver

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MISREPRESENTATION

• Accurate representations
• Risk of injury

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IDENTITY-RELATED ISSUES

• Identity Theft
• Employer Response
• Protecting Social Security Numbers

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FACTA

• Free Reports
• Truncation of Credit Card Information
• Disposal of Consumer Reports

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DRIVING RECORDS

• Drivers Privacy Protection Act
• Consumer reporting agency versus Department of
  Motor Vehicles

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Presented byChad P. Richter Berens Tate, PC,
LLO10050 Regency Circle, Suite 400Omaha, NE
68114(402) 391-1991www.berenstate.com