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FCRA Section 613(a) Compliance

Background screening professionals that did not attend this session may have missed the latest developments on credit reports and section 613(a) compliance. On the other hand, newcomers to the background screening industry may be wondering, “How does section 613(a) apply to me, and what is required to remain compliant?”
Section 613 specifically addresses screening agencies reporting public record information for employment purposes. When conducting a background check for employment purposes and reporting on public records “likely to have an adverse effect upon a consumer’s ability to obtain employment,” screening agencies are required to adhere to some extra precautions. There are two options for compliance listed under section 613(a).
Option 1
Notify the consumer of their background check report “at the time such public record information is reported to the user of such consumer report.” The exact timing of sending the notice to the consumer is unclear. I believe the report should be sent at the same time.
Note that section 613(a) (1) does not require that a copy of the report be included in the notification. I, however, believe that providing a copy to the consumer is in good form to ensure the consumer has an immediate opportunity to dispute and correct the reported information before the job offer is lost. This will also reduce support time by preventing the inevitable call for a copy. More importantly, the consumer is better served and less likely to seek legal payback.
Option 2
Retain a strong operations team with written policies maintaining strict procedures “to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.”
It appears this law was targeted specifically at employment because of the damage losing an employment opportunity can cause, even so some screening agencies apply the same requirements to other purposes.
This section of the FCRA indicates that for purposes of this option “items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.” Industry practice is to only report what you have verified with the courthouse in the last 30 days.
What is and is not a public record?
It would be helpful if section 613 also included examples of commonly reported records that are not public records. For example, referencing freinds, co-workers, and employers does not fall into the public records category. From my perspective, the following are considered public records:

  • Public records in credit reports include judgments, liens, and bankruptcies.
  • Criminal records
  • Sex offender records
  • Wants & Warrants records
  • Civil records (including eviction records)
  • Driving records

In my experience, option two is the obvious choice. Deliver a better quality report, and increase revenue by verifying hits from leads generated by a national criminal database search. On the other hand, other search types may be too tricky for an option two approach. For example, a credit report contains judgments, liens, and bankruptcies, which are all public records. In practice, most screening agencies do not verify records on a credit report. This suggests performing the requirements of both options whenever a credit report is included in the background check. Verify your traditional public record searches (e.g. criminal) and send the consumer a section 613(a) compliant notification.
Above all, I encourage screening agencies to seek legal advice from an attorney who specializes in FCRA compliance to review this process and discuss the searches that do not fall neatly in or out of the public records category.
TazWorks Compliance Options
TazWorks’ feature-rich software provides a number of compliance options. Contact us to learn more about the features that fit your screening needs.

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