This article by Montserrat Miller originally appeared on JDSupra.com
The Heroes Act includes a provision that would place a temporary moratorium on the ability of consumer reporting agencies (CRAs) to furnish certain adverse information during major disasters, including during COVID-19.
Section 110401 of the Heroes Act would amend changes the CARES Act made to the Fair Credit Reporting Act (FCRA) by adding, “[n]o person may furnish any adverse item of information (except information related to a felony criminal conviction) relating to a consumer that was the result of any action or inaction that occurred during a covered period,” with “covered period” referring to the COVID-19 emergency or any major disaster.
If that sounds overly broad, it’s because it is. Such a change would significantly impact the information employers receive when requesting an employment-related background check from their background screening vendor. Under the FCRA, background screening providers (known as CRAs) may furnish adverse information for a period of seven (7) years, including information such as certain criminal charges, arrests (such as an active arrest warrant), misdemeanor convictions, and sanctions or disbarment actions. The language in H.R. 6800 would only allow the reporting of felony criminal convictions, which is currently allowed under the FCRA with no seven-year limitation. It would, therefore, take away information that employers may currently lawfully consider when evaluating a candidate for employment.
The bill also includes language that would require credit bureaus (i.e., 603(p) CRAs) and nationwide specialty CRAs to delete adverse information from consumers’ files upon request. Meaning, they would have to delete adverse information that, but for COVID-19, would have been lawfully reportable.
H.R. 6800 now awaits consideration in the Senate, having passed in the House of Representatives in May. If you would like to contact your Senators to voice concerns about the language in Title IV of H.R. 6800, call the U.S. Capitol Switchboard at (202) 224-3121 and ask them to connect you to your Senators offices.
Click here for the text of the bill. The language is found in Title IV–Suspending Negative Credit Reporting and Strengthening Consumer and Investor Protections. NOTE–the restrictive language is not limited to “credit,” as the title suggests.
The Professional Background Screening Association (PBSA) has written to Senate leadership in opposition to Section 110501 of the Heroes Act because of its serious detrimental impact on public safety. In its current form, Section 110501 undermines the ability of employers’ ability to meet their obligation to the public (including a number of statutory obligations) to promote safe workplaces and communities and therefore has requested it be stricken from the bill or amended to address PBSA’s concerns for safety.
AmericanChecked is monitoring the Heroes Act as it moves through the Senate and will continue to update our clients on legislation that impacts businesses.
AmericanChecked Inc. is a nationally accredited global background screening company providing efficient, paperless screening solutions for highly regulated industries including tribal and commercial casinos, tribal enterprises, cannabis, insurance groups and construction firms as well as nonprofits and associations. Decades of experience, coupled with state-of-the-art security and technology, distinguish AmericanChecked in today’s marketplace. AmericanChecked offers several proprietary products and spearheaded the Nevada Senate Bill 409, allowing employers to receive critical background information on applicants that was previously unreportable. With an A+ BBB rating, AmericanChecked is the winner of two BBB Torch Awards for Ethics, US Chamber of Commerce Blue Ribbon, Tulsa Metropolitan Chamber Crystal Award, and four ICIC Inner City Awards. In 2019, AmericanChecked became a part of the Community Brands family of services.