What is the Adverse Action Process and why is it important?
Adverse Action, as it relates to background checks, is any action taken by an organization based on information in an applicant’s background check that may negatively impact that applicant. The Adverse Action Process gives an applicant the opportunity to dispute any inaccurate or incomplete information on a background check. Adverse action could include, but is not limited to, denying employment, denying an opportunity to volunteer, demotion, transfer, or any other negative outcome or change in role. Adverse Action, by its nature, directly affects the consumer (applicant) and therefore may engender compliance risk and litigation.
Current federal law, in the form of the Fair Credit Reporting Act, requires that every organization comply with the Adverse Action Process. Federal law requires that you take the following steps BEFORE denying an employment or volunteer opportunity to an applicant based on background check information provided by Abuse Prevention Systems.
PLEASE NOTE: FCRA compliance requires a two-step notification process.
Step 1: Pre-Adverse Action Letter - The organization must, by law, provide the applicant with the pre-adverse action letter.
Orally, in writing, or via electronic communication, notify the candidate of pre-adverse action by providing the applicant with the following:
- The name, address, and telephone number of Abuse Prevention Systems;
- Notice that Abuse Prevention Systems did not make the adverse decision and that they are unable to provide an explanation as to why such a decision was made;
- A copy of the background report obtained related to the applicant;
- A copy of “A Summary of Rights Under the FCRA”;
- Notice of the applicant’s right to contact Abuse Prevention Systems directly to dispute inaccuracies or incomplete information on a background report; and
- Notice that the applicant has a right to a free copy of the report within 60 days.
***All the information and notices listed above are included in the adverse letters provided by Abuse Prevention Systems.***
Once the pre-adverse letter is sent, you must allow the applicant a “reasonable amount of time” (industry standard is 7 business days) to contact you or Abuse Preventions Systems to file a dispute.
Step 2: Adverse Action Letter - After 7 business days, if you do not hear from Abuse Prevention Systems or the applicant, proceed in sending the Adverse Action Letter.
**Please note: In addition to the FCRA Adverse Action process required by federal law, some jurisdictions require that additional steps be followed. These jurisdictions include, but are not limited to: CA, CT, Chicago (IL), Waterloo (IA), Montgomery (MS), Prince George’s County (MD), Columbia (MO), Kansas (MO), St. Louis (MO), NJ, NY, Portland (OR), PA, Austin (TX), Seattle (WA) and Wash. DC.
This overview of ban-the-box requirements is frequently updated, but legal requirements change quickly in some jurisdictions, and Abuse Prevention Systems cannot guarantee all information is current. Always consult your attorney for legal advice.
Please see this article for more information on State-Specific Adverse Action Processes.
In addition to the FCRA Adverse Action process, some jurisdictions require additional steps, in accord with state or local law.
In April of 2012, the Equal Employment Opportunity Commission (EEOC) released a best practices guidance discouraging blanket rejection of individuals who have been convicted of crimes. Instead, EEOC encourages employers to provide such candidates with an individualized assessment based on the relation of the criminal offense to the position applied for, allowing an employer to consider the totality of circumstances surrounding the crime and whether the crime is relevant to the position to be filled.
The EEOC refers to three primary criteria when reviewing an applicant’s criminal record:
-The nature and gravity of the offense;
-The passage of time since the offense and or/or completion of sentence; and
-The nature of the job held or sought.
The EEOC also encourages the consideration of other factors, including:
-The facts or circumstances surrounding the offense or conduct;
-The number of offenses for which the individual was convicted;
-The individual’s age at the time of conviction;
-Evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct;
-The length and consistency of an applicant’s employment history before and after the offense or conduct;
-Employment or character references and any other information regarding fitness for the particular position; and
-Whether the individual is bonded under a federal, state, or local bonding program.
The cities of New York and Los Angeles require individualized assessments, DOCUMENTED, as an element of the hiring process, BEFORE taking adverse action. Unlike the Adverse Action process required under the FCRA, the requirement of individualized assessments stems from federal, state, and municipal fair hiring laws.