Hiring Drivers? What You Need to Know About Adverse Action

SEPTEMBER 12, 2019 – Consider this scenario: You post a job ad looking for new drivers and get a really promising candidate. You bring them in for an interview, and when all looks good, you make an offer. As soon as the candidate’s background screens come back, and their driver file is ready to go, you’ll get them on the road.

Then you get the news: there’s information on the background check report that calls their safety into serious question – and now you’re not sure if you want to move forward with the hire.

Now what do you do?

Because the information came from a consumer report, it’s not as simple as revoking the offer. To comply with federal law (and protect yourself from a lawsuit) there are specific steps you must take before you can make the decision not to hire someone. These steps, known as Adverse Action, are designed to give candidates and employees the opportunity to review the accuracy of the information contained in the report so that they can request corrections if inaccuracies are found.

Failure to follow these steps can lead to expensive lawsuits that can be tough to fight in court – especially when it’s clear that the company acted non-compliantly.

3 Step Adverse Action Process

 The next time you need to make an employment decision based on negative information found in an MVR, PSP or other background check report, make sure you follow these three steps:

1. Send the Driver a Pre-Adverse Action Notice. This letter will notify the driver of your preliminary decision to deny employment (or terminate their employment in the case of an existing driver) because of information discovered through the background screening process. This letter must be accompanied by the background screening report that contains the negative information, as well as a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
2. Give the Driver Time to Respond. The FCRA doesn’t give an exact timeframe on the length of time you need to wait. However, the generally agreed upon industry standard is five business days.
3. Proceed (if needed) with the Adverse Action Process. Once the waiting period has passed, and the applicant/employee has not disputed the results of the background check, you can move forward and send the driver a formal Adverse Action Notice that informs them of your final decision not to hire them or to terminate their employment based on the information found in the report. In addition, this letter must include:
   1. The name, address and phone number of the Consumer Reporting Agency that provided the information.
   2. A statement indicating that although the Consumer Reporting Agency provided the information, it was not involved in the decision-making process and cannot provide the reason for the adverse decision.
   3. A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

Keep in mind that while FCRA compliance is the most well understood in the industry, many states and local jurisdictions have their own unique adverse action requirements that must be followed during the employment process. To ensure that your pre and post-hire screening practices are fully compliant, it’s important to work with someone who understands your particular requirements – and can help not only run compliant background screens on your behalf, but can manage the adverse action process when needed.

Ready to learn more? Give us a call at (860) 815-0764.