Privacy Issues in the Workplace

Recommendations:  Agencies should examine their background check disclosure forms and on-line application forms to make sure that their disclosure forms are limited to disclosures and do not contain liability waiver language or extraneous language.  If an agency uses a form provided by a third party (e.g., its outside background investigator), the agency should make sure that the disclosure form is limited to disclosures and does not contain any liability waiver language or extraneous language.  If a question exists as to whether language in the form is appropriate, the agency should consult with legal counsel. i. Affirmative Obligations on Employer If an employer is or utilizes a consumer reporting agency to conduct a reference or background check, it must undertake the following:  Within three (3) days of requesting a report, the employer must make a “clear and conspicuous disclosure” to the applicant in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes. 56  The employer must certify in writing to the consumer reporting agency that the required disclosures have been made to the applicant, that the applicant has provided written authorization to procure the report, that the information in the report will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation. 58  Upon written request by the applicant (made within a reasonable period of time after the receipt by the applicant of the above disclosure), the employer must make a complete and accurate disclosure of the nature and scope of the investigation that the consumer reporting agency has been requested to perform. 59  Prior to taking an adverse action (a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee) 60 based in whole or in part upon the report, the employer shall provide to the applicant a copy of the report, as well as a written description of the rights of the employee as prescribed by the Federal Trade Commission. 61  Upon taking adverse action, an employer must provide oral, written, or electronic notice of: 1) the adverse action to the applicant, 2) the name, address, and telephone number of the consumer reporting agency that furnished the report, 3) the applicant’s right to obtain a free copy of the report, 4) the applicant’s right to dispute the accuracy or completeness of any of the information in the report. The employer must also notify the applicant that the consumer reporting agency did not make the decision to take the adverse action and that it is unable to provide the consumer the specific reasons why the adverse action was taken. 62  The employer may not use the report for any purpose other than that for which it was authorized by the applicant to be procured. 63  The applicant must provide written authorization to procure the report. 57

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 22