Regional Requirements That Might Impact Your Background Check Adjudication Process
Editor’s Note: This article is authored by the Checkr Compliance team.
Adverse action is the process employers must follow when an individual may be disqualified from consideration for a position based on the results of a background check. This includes hiring a candidate or denying a promotion or transfer to a current employee. If your team chooses to initiate adverse action, you are required by the federal Fair Credit Reporting Act (FCRA) to provide the candidate with written pre- and post-adverse action notices and allow an opportunity for the candidate to dispute any incorrect or outdated information.
In addition to the FCRA, various states, counties, and cities also have laws that can impact the adverse action process and how employers evaluate candidates during the hiring process. These laws are often referred to as “Ban the Box” or “fair chance hiring” laws, ordinance, or regulations. Currently, over 180 jurisdictions have adopted Ban the Box policies. These policies mainly cover the public sector, but many laws also apply to private sector employers.
The state of California, for example, has Ban the Box laws that apply at the state, county, and city levels, which include:
- California: Under the California Fair Chance Act, any pre-adverse action notice should inform candidates of a candidate’s right to dispute information, provide evidence of rehabilitation, and receive five business days (the waiting period) to send any additional information prior to a final adverse action notice. Candidates should also be informed of the specific records preventing them from moving forward in your hiring process. Candidates should be informed of their right to file a complaint with the California Civil Rights Department if they believe.
- City of Los Angeles: The Fair Chance Initiative for Hiring Ordinance (FCIHO) requires notice in the pre-adverse action of the candidates’ right to submit and have additional information considered. The adverse action notice should identify the specific information that is preventing the candidate from moving forward in the process. City of Los Angeles candidates should also be provided with a written assessment informing the candidate why the information contained in their background check report is preventing them from moving forward in the engagement or hiring process.
- Los Angeles County: The Fair Chance Ordinance for Employers is a burdensome and complex law for employers who incorporate background check reports into their hiring process for unincorporated LA County workers. The most burdensome aspect of this law is postal mailing of both the pre- and post-adverse action notice, even if the worker has email available (Checkr’s product supports the mailing requirement). This mailing requirement is unique to LA County and does not exist in other jurisdictions. The adverse action notice should identify the specific information that is preventing the candidate from moving forward in the process.
- LA County, like the City of LA, requires a written individualized assessment be provided to the candidate with the pre-adverse action notice, and that the candidate be informed of their right to provide additional information and be re-assessed, with a final decision.
- Candidates should also be informed of their right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs (DCBA) as well as with the California Civil Rights Department (CRD) in the final adverse action notice. Candidates should also receive a reassessment of any additional information if they provided such.
- San Diego County: The county’s Fair Chance Ordinance provides candidates with 5 business days to respond to the adverse action notice with evidence or dispute the information. The adverse action notice should identify the specific information that is preventing the candidate from moving forward in the process. Candidates should be notified of their right to file a complaint, if they believe there has been a violation, with the California Civil Rights Department (CRD) or the San Diego Office of Labor Standards & Enforcement (OLSE).
- City of San Francisco: The city’s Fair Chance Ordinance requires candidates be informed in the pre-adverse action notice of the specific records preventing them from moving forward in your hiring process. It also may require you to submit yearly compliance reports to the Office of Labor Standards & Enforcement (OLSE). Candidates should be advised that they have the opportunity to provide evidence of rehabilitation.
The table below is an overview of additional specific state and local laws applicable to adverse action requirements which may apply to your operations.
| Jurisdiction | Ban the Box Regulation(s) |
|---|---|
| Florida—City of Gainesville | The city’s Fair Chance Hiring Ordinance, requires the pre-adverse action notice to include the specific information that is preventing the candidate from moving forward in the process. It also includes a requirement that specific language be included in the pre-adverse action notice, stating: This notice is provided in accordance with the City of Gainesville Code of Ordinances, chapter 14.5, section 14.5-181, which regulates the process and timing of criminal background checks conducted on job applicants. |
| Georgia | Under Georgia Code § 35-3-34, pre- and post- adverse action notices must mention that records may have originated from the Georgia Crime Information Center. |
| Illinois | The Illinois Human Rights Act, requires an individualized assessment to be sent to candidates if an initial decision not to move forward is made. The final adverse action notice should include any information an employer has regarding internal procedures to challenge the final hiring decision or have it reconsidered, and notice of the candidates right to file a charge with the Illinois Department of Human Rights. Candidates should also receive a reassessment of any additional information if they provided such. |
| Illinois—City of Chicago | The city’s Ban the Box law requires that candidates be provided with an individualized assessment in writing in the pre-adverse action notice, and upon any re-assessment. It also requires candidates be informed of their right to file a complaint with the Chicago Commission on Human Relations. |
| Maryland—Montgomery County | This county’s Fair Criminal Record Screening Standards law requires candidates be informed of the specific information in the background check report that prevents them from moving forward in the process. |
| Maryland—Prince George’s County | The county’s Fair Criminal Record Screening Standards laws requires candidates be informed of the specific information in the background check report that prevents them from moving forward in the process. |
| New Jersey | New Jersey candidates should be provided with a Summary of Rights, under the state’s Fair Credit Reporting Act (NJFCRA). |
| New York | State pre-adverse action notices must include New York State Correction Law Article 23-A language about candidates' rights, along with the Article 23-A disclosure form. |
| New York—City of New York | The city’s Fair Chance Act requires a two-step process, where non-criminal screenings are completed and evaluated prior to any criminal background check report and adjudication. In addition, a written individualized assessment should be provided to candidates. Candidates should also receive a reassessment of any additional information if they provided such. |
| Oregon—City of Portland | The city’s Ban the Box law requires candidates be informed of the specific information in the background check report that prevents them from moving forward in the process. |
| Pennsylvania—City of Philadelphia | The city’s Fair Criminal Record Screening Standards Ordinance requires employers to provide candidates with ten additional business days to dispute or provide information following a final adverse action notice. |
| Washington | Washington candidates should be provided with a Summary of Rights, under the state’s |
These laws are always evolving and we recommend working with your legal counsel to ensure that your background check process is compliant where you operate, where your candidates are located, and as applicable for your industry.
By working closely with your legal counsel and the right background check partner you can conduct hire with confidence. Checkr’s adjudication tools, including our adverse action workflow, support fair hiring and regional compliance while enhancing your team’s efficiency.
Disclaimer
The resources and information provided here are for educational and informational purposes only and do not constitute legal advice. Always consult your own counsel for up-to-date legal advice and guidance related to your practices, needs, and compliance with applicable laws.