Last month the supreme court declined to hear the case Syed v M-I, LLC. This case found the employer willfully violated FCRA statute dictating FCRA disclosures must be separate from any other notifications or authorizations. The employer in this case included a liability waiver with the disclosure and the court found this action alone was in violation.
Annica Bianco reported that by combining a liability waiver with the required FRCA disclosure the potential employee signed one document indicating they authorized the background check and waived the employer of any liability. This effectively removed the ability for the potential employee to review and consider both documents. It became apparent that had the disclosure been separate from the liability waiver they would not have authorized the background check.
In situations like these the court may find the employer not just liable for being non-compliant but in addition charge them for being willfully in violation of FCRA statute. Then the court can fine the employer up to $1000 per violation and more if they deem necessary. Regardless of the amount they fine an employer it’s a big price to pay for a simple mistake.
Unfortunately, employers make these types of simple mistakes quite often when the actual FCRA authorization is very simple. The requirements made it seek to make it very clear and easy to understand for applicants. The short document ensures there is no confusion on what they are signing up for. This sample FCRA compliant authorization form from the Society for Human Resource Management is very close to the electronic authorization form HireSafe uses and as you can see is very straightforward.
Employers get into trouble when they try to make things faster by including more releases with one signature, or include other language in the required notification. Adding language or paperwork other than disclosure is directly against the FCRA statutes so even well-intentioned edits can be cause for lawsuit. The most common cases involve employers adding other waivers to the text of the FCRA required documentation or authorization.
FCRA Compliance is imperative for our clients because those fines are more damaging to small businesses. We shared a report last month that showed employers must be familiar with the FCRA regulations because lawsuits are ever increasing.
With HireSafe, required FCRA documentation is sent electronically to your potential hire, the documentation abides by the latest FCRA background check laws and regulations. You should always review the FCRA rules and your local regulations to ensure you comply and understand the local ordinances.
Legal disclaimer: we are not attorneys and this information is provided based upon the Fair Credit Reporting Act and our experience as a consumer reporting agency. Clients are advised to consult with counsel to create their own policies and procedures with regards to hiring suitability.