Adverse Action: The
Importance of the Pre-Adverse Letter
The pre-adverse letter, required by the Fair
Credit Reporting Act, gives an applicant/employee the opportunity to dispute
information that has been gathered about their background.
It is the first step that an employer must
take before rescinding an offer for employment or firing a current employee.
The reason for this is that documented
criminal data is occasionally inaccurate.
In 2011, the Department of Justice released a study of the state and
federal criminal records repositories.
According to this study, many of the repositories had not recorded the
final dispositions for a large number of arrests.
1 In addition, county courts do not make use of
social security numbers.
Records are
pulled by matching name and date of birth.
Clerical errors, although rare, can lead to receiving the wrong record
for your candidate.
In section 615(a)(1), the Fair
Credit Reporting Act states that pre-adverse action notices may be sent orally,
in writing, or electronically, however, to protect yourself and your company it
seems best to send the letter electronically or in writing in order to have a
record that the letter was sent and/or received. Part of a suit against Dollar General and
their third party background screening company states that the applicant never
received the pre-adverse letter, and therefore did not have the chance to
dispute information that was incorrect which subsequently affected her opportunity
for hire.
The
Pre-Adverse Letter must include an explanation of the applicant/employee’s
right to see the information reported, explain that they have the opportunity
to dispute any incorrect information, the name and address of the consumer
reporting agency that delivered the information, a statement that the consumer
reporting agency did not make the decision, and who they should contact should
they decide to dispute the material in the report. Keep in mind that no decisions can be made
about employment during the pre-adverse phase.
The FCRA does not specify how much time should be given between the
pre-adverse letter and the final adverse letters. The EEOC suggests that five business days
gives the applicant ample time to begin the dispute process. The employer then has 60
days to verify the information. The employer
may not rescind the offer of employment or fire an employee during the dispute
process.
With one
in four Americans having an arrest record or criminal history
2 it can be a
daunting task to keep track of your adverse action process, when pre-adverse
letters were sent, which ones have been disputed, and when to send out a final
adverse letter.
At Risk Assessment
Group, we provide that service for you.
Our system keeps track of when the pre-adverse letter was sent, any data
from the applicant is uploaded into the system, any contact with clerks of
court are recorded for your reference, and our system alerts our account
representatives when it is time to send out the final adverse letter.
Dennis A. DeBacco & Owen M. Greenspan, Bureau of Justice Statistics, U.S. Dep’t of Justice, Survey of State Criminal History Information Systems, 2010, at 2 (2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter State Criminal History].1 ↩
See Written Testimony of Amy Solomon, Senior Advisor to the Assistant Attorney General, Office of Justice Programs, U.S. Department of Justice (DOJ), submitted for EEOC Meeting to Examine Arrest and Conviction Records as a Hiring Barrier (July 26, 2011), available at http://www.eeoc.gov/eeoc/meetings/7-26-11/solomon.cfm (last accessed January 25, 2013) (citing DOJ Bureau of Justice Statistics data that over 92 million people have a criminal history on file in state criminal history repositories and comparing that to Census data on the number of adults in the U.S.).2 ↩
