What is the Adverse Action Process, and why is it important?

Adverse Action Process

Adverse Action, as it relates to Background Checks, is any action taken by a Ministry based on information in an applicant’s background check that may negatively impact that applicant. The Adverse Action Process gives an applicant the opportunity to dispute any inaccurate or incomplete information on a background check. Adverse Action could include, but is not limited to, denying employment, denying an opportunity to volunteer, demotion, transfer, or any other negative outcome or change in role. Adverse Action, by its nature, directly affects the consumer (applicant) and therefore may engender compliance risk and litigation. 

Current federal law, the Fair Credit Reporting Act, requires every Ministry to comply with the Adverse Action Process. Federal law requires that the following steps occur BEFORE denying an employment or volunteer opportunity based on background check information provided by MinistrySafe.

PLEASE NOTE: FCRA compliance requires a two-step notification process. 

FCRA PROCESS

Step 1: Pre-Adverse Action Letter -
By law, each Ministry must provide an applicant with the Pre-Adverse Action Letter BEFORE denying an employment or volunteer opportunity based on background check information. Orally, in writing, or by electronic communication, notify the prospective employee or volunteer of Pre-Adverse Action by providing the following:

1. The name, address, and telephone number of MinistrySafe;
2. Notice to the applicant that MinistrySafe did not undertake the adverse decision and is therefore unable to provide an explanation as to why such a decision was made;
3. A copy of the applicant’s background check obtained from MinistrySafe;
4. A copy of ‘A Summary of Rights Under the FCRA’;
5. Notice of the applicant’s right to contact MinistrySafe directly to dispute inaccuracies or incomplete information on a background check; and
6. Notice that the applicant has a right to a free copy of the background check within 60 days.
   

   ***All the information and notices listed above are included in the Adverse Letters provided by MinistrySafe.***

   Once the Pre-Adverse Letter is sent, each Ministry must allow the applicant a ‘reasonable amount of time’ (industry standard is 7 business days) to contact the Ministry or MinistrySafe to file a dispute.

   Step 2: Adverse Action Letter - After 7 business days, if the Ministry does not hear from MinistrySafe or the applicant, proceed in sending the Adverse Action Letter.

   
   

   **Please note: In addition to the FCRA Adverse Action Process required by federal law, some jurisdictions require additional steps. These jurisdictions include, but are not limited to: CA, Los Angeles (CA), San Diego (CA), Unincorporated Los Angeles (CA), San Francisco (CA), CT, IL, Chicago (IL), MA, Montgomery (MD), Prince George’s County (MD), Columbia (MO), Kansas City (MO), St. Louis (MO), NJ, NY, New York City (NY), Syracuse (NY), Portland (OR), PA, Philadelphia (PA), Austin (TX), VT, Seattle (WA), Spokane (WA), and Washington DC.
   
   

   INDIVIDUALIZED ASSESSMENTS

   In addition to the FCRA Adverse Action process, some jurisdictions require additional steps, in accord with state or local law. In April of 2012, the Equal Employment Opportunity Commission (EEOC) released best practices guidance discouraging blanket rejection of individuals who have been convicted of various crimes. Instead, EEOC encourages employers to provide such candidates with an Individualized Assessment based upon the relation of the criminal offense to the position applied for, allowing an employer to consider the totality of circumstances surrounding the crime and whether the crime is relevant to the position to be filled.

   The EEOC refers to three primary criteria when reviewing an applicant’s criminal record:

   • The nature and gravity of the offense;
   • The passage of time since the offense and/or completion of sentence; and
   • The nature of the job held or sought.

   The EEOC also encourages the consideration of other factors, including:

   • The facts or circumstances surrounding the offense or conduct;
   • The number of offenses for which the individual was convicted;
   • The individual’s age at the time of conviction;
   • Evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct;
   • The length and consistency of an applicant’s employment history before and after the offense or conduct;
   • Employment or character references and any other information regarding fitness for the particular position; and 
   • Whether the individual is bonded under a federal, state, or local bonding program.

   New York and Los Angeles, CA, require documented Individualized Assessments as an element of the hiring process BEFORE taking Adverse Action. Unlike the Adverse Action Process required under the FCRA, the requirement of Individualized Assessments stems from federal, state, and municipal fair hiring laws.
   
   

   PLEASE NOTE: This overview is frequently updated, but legal requirements change quickly in some jurisdictions, and MinistrySafe cannot guarantee all information is current. Always consult your attorney for legal advice.