Unsuccessful applicants have rights regarding criminal background checks — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Unsuccessful applicants have rights regarding criminal background checks

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in Employment Background Check,Hiring,Human Resources

Q.  Our company uses the sheriff’s office to run criminal background checks on all finalists for employment. Our application form notifies the applicants that their criminal histories might be reviewed, but we do not provide any further notice to them. Our new personnel director is adamant that this practice is in violation of the federal Fair Credit Reporting Act (FCRA). Is she correct?

A.  For the most part, no. The FCRA applies when employers obtain background information from consumer reporting agencies. Neither local law enforcement agencies nor the Georgia Crime Information Center (GCIC) — the state agency that maintains the database that your sheriff’s office accesses to conduct criminal background checks—is a consumer reporting agency and, therefore, the FCRA’s requirements do not apply.

While your personnel director’s concerns regarding the FCRA are misplaced, she is nevertheless correct that you have not been handling the background checks in a completely lawful manner. Georgia law permits employers to access limited criminal records in the GCIC database, subject to certain restrictions, without applicant or employee consent or knowledge. However, if an employer makes a hiring decision (or other employment decision) that is adverse to that applicant or employee, Georgia law requires the employer to notify him or her of all information pertinent to that decision. This disclosure includes information that a record was obtained from the GCIC, the specific contents of the record and the effect the record had upon the employment decision, if any.
 

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