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Are Your DOT Background Checks FCRA Compliant?
Foley
5 mins read

NOVEMBER 27, 2018 – Are you running background checks on your new drivers?

Although pre-employment background checks have become an expected part of the hiring process for most employees, it is required by law for carriers who must create and maintain driver files. These background checks serve as a verification of a driver’s past DOT-regulated employment history and include information on their driving record, drug and alcohol violations and work experience. Once collected, this information must be kept in a secure location to protect the privacy of the individual.

Not Just DOT Compliance

For many in the transportation industry, staying compliant with DOT regulations is top of mind. So when it comes time to create a new driver file – either for yourself or a new employee – it can be easy to forget that those aren’t the only regulations you must adhere to. First and foremost, you are an employer that is looking into the background of a new employee. And that means if you use a third-party vendor to run your background checks, that you must also adhere to the Fair Credit Reporting Act (FCRA). This federal regulation gives applicants and employees an opportunity to address inaccuracies on their background check reports before an employment decision is made.

Running a Background Check? You Must Do This First

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To be FCRA compliant, you must provide a disclosure that a background check will be done and you must have written permission from the applicant or employee before you order a background check.  In total, the consumer will need to be supplied with three documents:

  • Disclosure: This notice must be given to the applicant or employee independently of other paperwork. For applicants, for example, you cannot include the disclosure statement on the application. The disclosure must be clear and conspicuous, in writing and consist solely of the disclosure. If you intend to run periodic background checks on an employee after they’re hired, that intention must be very clearly stated within the disclosure.
  • Authorization: The Employer requesting the background check must obtain written authorization from the consumer, acknowledging they have received the Disclosure, as well as providing consent that expressly permits both the research and Consumer Report to be produced about them.
  • Summary of rights: If the Employer plans to take adverse action based on the contents of the consumer report, the consumer must be provided with a copy of the “Summary of Your Rights Under the Fair Credit Reporting Act.” You can download and print a copy here: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf

Additionally, you must certify that you’re running compliant background checks with the background check company that’s handling your searches.  Through this process, you must certify you’ve provided the consumer the disclosure, received written authorization and will not misuse the information or discriminate based on the results.

An Intro to Adverse Action

If you’re making any negative decision based in whole or in part on information contained in a Consumer Report, you must follow FCRA Adverse Action Guidelines.  This procedure must be followed even if the information in the Consumer Report informing your employment decision is not the only factor in the decision. For example, if you decide to no longer pursue a job candidate because of a piece of information in the report, as well as because other candidates had more desirable qualities, the Adverse Action and Pre-Adverse Action procedures must still be followed.

Adverse Action is an article in itself, which we’ll cover in a future piece. For now, if you have questions about Adverse Action, or need help managing the process in your business, please give us a call at (860) 815-0764.

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