Compliance Corner

In the complex landscape of employment background screening, compliance with the Fair Credit Reporting Act (FCRA) and state-specific laws is critical. One area that demands particular attention is the adverse action process, that is, the legal steps an employer must follow when deciding not to hire a candidate based on information in a background report. While some employers may be tempted to outsource this process to their consumer reporting agency (CRA), doing so can expose them to legal and regulatory risks.

The Employer’s Legal Responsibility Under the FCRA

The FCRA requires employers to follow a two-step process before taking adverse action:

1. Pre-Adverse Action Notice: Along with this notice, the employer must provide the candidate with a copy of their consumer report and a summary of rights under the FCRA.
2. Adverse Action Notice: After a reasonable waiting period–typically at least five business days, per Federal Trade Commission (FTC) guidance–the employer may send a final notice if they decide not to hire the candidate.

This process allows candidates to dispute inaccurate or incomplete information before a final decision is made.

Timing Matters: The Risk of Premature Decisions

The timing between the pre-adverse and adverse action notices is not explicitly defined in the FCRA, but courts and regulators have consistently held that five business days is the minimum acceptable waiting period. If a CRA sends both notices too close together or simultaneously, it undermines the candidate’s right to dispute the report and may be seen as a violation of the FCRA.

Who Is Making the Hiring Decision?

The most critical issue arises when a CRA appears to be making the hiring decision rather than the employer. If a CRA sends adverse action notices without the employer’s review or discretion, it could be construed that the CRA is deciding the candidate’s eligibility for employment. This is problematic because:

• Only the employer can assess job-relatedness and business necessity.
• CRAs are not equipped to perform individualized assessments, which are required under many state and local laws.

Fifteen states (California, Colorado, Connecticut, Hawaii, Illinois. Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington) have “Ban-the-Box” laws, several of which require employers to conduct individualized assessments before taking adverse action based on criminal history. Additionally, cities and counties like Los Angeles, New York City, and San Francisco have their own ordinances that include more stringent requirements for these assessments. These assessments typically involve evaluating the nature and gravity of the offense, its relevance to the job, and the time that has passed, and must be documented and provided to the applicant. They cannot be delegated to a CRA.   

Legal Precedent: When a CRA Crosses the Line

While there is limited case law directly holding that a CRA made the decision instead of the employer, courts have scrutinized situations where employers failed to retain control over the adverse action process. In Goode v. LexisNexis Risk & Information Analytics Group, Inc., the court emphasized that employers must make the final employment decision and cannot rely solely on automated decision tools provided by CRAs.

Additionally, in Henderson v. CoreLogic, the court found that the CRA’s automated scoring system used to filter candidates could be interpreted as making employment decisions, raising serious FCRA compliance concerns.

These cases underscore the importance of employer discretion and the legal risks of outsourcing the hiring decision.

Conclusion

Delegating the adverse action process to a CRA may seem efficient, but it can lead to serious compliance failures. Employers must remain actively involved in evaluating background check results, conducting individualized assessments, and making final hiring decisions. The stakes are too high to outsource this critical function.

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

What is this about?

On September 25, 2025, the Philadelphia City Council passed a bill amending and expanding the existing Philadelphia Fair Chance Law. This legislation introduces several changes to enhance protections for job applicants and employees with criminal records. It becomes effective on January 6, 2026, and applies to employers in Philadelphia.

Key Changes:

Shortened Lookback Period for Misdemeanors

Under the existing Fair Chance Law, employers are prohibited from considering conviction information that is older than seven years from the date of the inquiry. The new amendments reduce the lookback period for misdemeanors to four years. The lookback period for felony convictions remains subject to the
seven-year window.

Summary Offenses Excluded From Employment Decisions:

The amendments reconcile the limitations under the Fair Chance Law with those imposed by the Pennsylvania Criminal Records Information Act (CHRIA) by confirming that employers may not consider summary offenses—offenses that do not rise to the level of a felony or misdemeanor—in making
employment decisions.

Added Protections for Expunged or Sealed Records:

Employers may not consider expunged or sealed criminal records. Furthermore, if such records appear in a background check or in PennDOT driver history reports, employers must allow applicants to provide proof of sealing or expungement before making a final decision.

Notice of Background Checks:

Employers who choose to provide notice of their intention to perform a
background check during the hiring process, such as in a job advertisement or in a job offer, must now also state that any consideration of the background check will be an individualized assessment based on the applicant’s or employee’s specific record and the requirements and duties of the particular
job.

Notice and Rebuttal Opportunities
Employers will have additional pre-adverse action requirements, which include
providing applicants or employees with:

1. A summary of the applicant’s or employee’s rights under the Fair Chance Law.
2. A statement that the employer will consider evidence of any error in the criminal history records, evidence of rehabilitation, or other mitigation if provided by the applicant or employee. A list of the types of evidence that may be offered includes:
   • • the completion of a mental health or substance use
       disorder treatment program
     • the completion of a job training program
     • the completion of a GED or post-secondary education
       program
     • service to the community
     • work history in a related field since the time of conviction
       or incarceration
     • an active occupational licensure, commercial driver

   licensure, or other licensure necessary to perform the specific duties of the job.

3. Instruction as to how the applicant or employee can exercise their right to provide evidence or explanation directly to the employer.

Anti-Retaliation Protections

The amendments provide a rebuttable presumption of retaliation if an employer takes adverse action within 90 days of an applicant or employee asserting their rights under the Fair Chance Law. Employers must demonstrate that any adverse action was taken in good faith and unrelated to the protected activity.

Why compliance matters:

Employers with operations in Philadelphia—including those hiring remote or hybrid workers—who may fall under the city’s jurisdiction, should use the time before January 6, 2026, to review their policies and prepare for implementation of the Fair Chance Law’s amended requirements. Most notably, employers should update their pre-adverse action notices to comply with the expanded notice and rebuttal rights to ensure that they are based on objective criteria that are unrelated to the applicant’s or employee’s exercise of their rights under the
Fair Chance Law.

What SI is doing:

SI provides employment-related background check reports that comply with federal, state, and local employment laws. SI stays current with changes in the laws that affect how an employer can use an individual’s personal information in an employment decision. SI’s policies and procedures will include compliance with the new Fair Chance Law amendments.

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.