EMPLOYMENT BACKGROUND CHECKS
Employment Screening and Criminal Records Background Checks In Montana
All employment screening services including pre-employment drug screening and pre-employment criminal record background checks are available in Montana.
Recent ruling concerning release forms by ninth circuit.
Single combined state and Federal release forms no longer adequate.
Employers conducting background checks in Alaska, Arizona, Idaho, Montana Nevada, Oregon and Washington State should be aware of this ruling and take steps to comply with this ruling.
In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws.
Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms:
(1) disclosure and consent under Fair Credit Reporting Act; and
(2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law).
CLEAR AND CONSPICUOUS LANGUAGE
By including release/authorization language related to the required state form, or any other required disclosure or release, the court also ruled that the combination form violated the FCRA because it contained “extraneous information and was as likely to confuse as it was to inform.”
The court also found that the CheckSmart Financial LLC, release form also contained language that a reasonable person would not understand.
Specifically, the court cited this sentence: “The scope of this notice and authorization is all-encompassing; however, allowing CheckSmart Financial, LLC to obtain from any outside organization all manner of consumer reports and investigative consumer reports now and, if you are hired, throughout the course of your employment to the extent permitted by law.”
First, the court found that this sentence did not explain how the notice was all-encompassing.
Moreover, it did not disclose the impact that authorization would have on a prospective employee’s rights.
In addition, the court cited the portion of the sentence after the semicolon.
It found that it was incomplete, lacked a subject and that the drafting may have caused confusion as to the possible limits of the authorization
What should employers do?
1. Obviously, Avoid Combining Any Other Release Or Disclosure Forms
2. Use Standalone Easy To Read and Understand Documents Only
3. Use Large Font, at least 12 point
4. Separate Subjects In The disclosure Language With Bold Title Headers
5. Use Plain Language And Avoid Legal Terminology
National Employment Screening provides professional pre employment screening services to Montana employers to help you protect your employees and clients from the costly effects of making a “Bad Hire.”
Our criminal records Smart Search Plus® has become the industry standard for a quality FCRA Compliant criminal records background check.
It includes an unlimited check of the Federal criminal records repositories in the states where the applicant has lived for the past 7 years.
It also includes a check of any needed state and county criminal records checks as well as a social security number address history trace, a multi-state criminal records database search and a check of of the sex offender registry in all 50 states.
It is the criminal records background check now chosen by most of our clients. For a brief overview of all of our employment screening services, please Click Here
We provide employment screening services for employers in all Montana cities including Butte, Helena, Billings and Bozeman.
Montana employment screening law:
Giving Employment References in Montana
Montana employment law states that: An employer may disclose information about a former employee at the request of the employee or prospective employer is not liable for damages arising out of disclosure unless disclosure is false and made knowingly or negligently. (Mont. Code §27-1-737)
Use Of Social Media in Pre Employment Screening In Montana:
Prohibits an employer from requiring or requesting an employee or applicant to disclose a username or password, access social media in the presence of the employer, or divulge information in a social media account as a condition of employment (2015).
Montana employment screening law:
Montana Reporting Restrictions (Enacted 1975)
No CRA may report records of arrest, indictment, or conviction of crime, which from date of disposition, release, or parole, antedate the report by more than seven years.
No exception for employment purposes.
Please note that Federal law mandates background checks for employees who are engaged in particular industries.
The Office of Inspector General of the Department of Health and Human Services maintains a list of individuals who are excluded from participation in any of its federally-funded healthcare programs.
Exclusions are due to convictions for program-related fraud and patient abuse, licensing board actions and default on health education assistance loans.
Therefore, employers in affected industries should check the OIG Exclusion list before hiring employees who might work in such programs.
The FACIS program is also very important when screening medical personnel.
Click Here for more information on FACIS®.
None of the information contained in this web site should be construed as legal advice. All forms, policies, information and procedures should be reviewed by your legal counsel before being used in any way.