Hunton Employment & Labor Perspectives

Beginning January 1, 2013, employers must issue an updated notice form to applicants and employees when using criminal background information under the federal Fair Credit Reporting Act.

For years, employers intending to obtain and use a criminal background check have issued to the applicant or employee a document titled “A Summary of Your Rights Under the Fair Credit Reporting Act” at three points in the process:  When obtaining the individual’s signed authorization consenting to the criminal background check; when notifying the individual that information within the check may cause the employer to take adverse action (i.e., refusal to hire) against the individual; and when notifying the individual that the employer has, indeed, taken adverse action because of the information within the check.

The federal government has updated the “Summary of Your Rights” form. This form replaces reference to the Federal Trade Commission with reference to the Consumer Financial Protection Bureau.  Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.  Under the law, that Bureau takes over from the Federal Trade Commission many enforcement powers under the Fair Credit Reporting Act.

In essence, the updated “Summary of Your Rights” form notifies applicants and employees to contact the Consumer Financial Protection Bureau (as opposed to the Federal Trade Commission) should they have questions about the background check process or results.  Otherwise, the form’s changes are cosmetic, not substantive.

While we would like to think that employers who continue to use the “old” form after January 1, 2013 will not be found in violation by a court if challenged, transitioning to the new form promptly is a prudent step that will eliminate any such risk.