Importance of Adverse Action Compliance in Volunteer Screening

Posted Thursday, February 22nd, 2018 by Sterling Volunteers Staff

As most volunteer organizations know, there are many components involved when conducting volunteer and paid staff background screening. When an organization uses a volunteer’s background information to deny a volunteer role, they must comply with federal and state laws which are meant to protect the applicant from discrimination. The variety of laws/rules can be overwhelming and if regulations are not complied with properly, an organization might have to deal with penalties.

Sterling Volunteers recently surveyed clients and non-clients alike —all of whom run volunteer programs – to better understand their background screening needs and processes in our recently released, “Volunteer Screening Trends and Best Practices Report 2018.” The 967 survey responders represented a wide range of organizations including social and human services, education, healthcare, religious and youth development groups. Responders were mostly volunteer managers and program managers and directors whose organizations relied heavily on unpaid volunteers.

Why are Organizations Screening?

Organizations are screening candidates for many reasons, but the majority of volunteer managers (91%) screen to protect constituents and vulnerable populations. The other top reasons to screen were:

• 89% to provide a safe and secure environment
• 77% to protect the organization’s reputation
• 48% to improve compliance/required by law
• 41% to improve volunteer quality
• 20% to increase volunteer retention

The survey found that almost half of the organizations screen all volunteers regardless of their position or how often they volunteer. Those working with vulnerable populations (children, elderly, and the disabled) are most likely to be screened (54.43% of organizations screen this group), whereas short-term, one-time and infrequent volunteers are least likely to be screened—only 11.76% of organizations screen this group. In other words, 88.24% of organizations are not screening short-term, one-time and infrequent volunteers. This opens those organizations up to tremendous risk. Even a one-time volunteer could endanger your organization and its mission.

Nearly seven percent of organizations report that at least five percent of their screenings return criminal convictions. While the vast majority of volunteer applicants will breeze through the screening process, most organizations who perform background screening will disqualify a few candidates as a result. While one in ten organizations automatically disqualify all volunteer applicants with criminal convictions, 49.42% disqualify only one-fourth or fewer of applicants with such convictions. 60% of organizations perform individualized assessments on volunteer applicants with criminal records, allowing them to explain the circumstances of their convictions. 15% of organizations send both pre-adverse and adverse action notices to disqualified candidates.

Compliance when Conducting Volunteer Screening

Compliance is a critical factor when conducting background screening. When an organization uses a volunteer candidate’s background information to deny them the position, they must comply with federal and state laws that protect the applicant from discrimination. When using consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, companies must comply with the Fair Credit Reporting Act (FCRA). The FCRA guidelines also apply to nonprofit organizations who utilize volunteers. Volunteer managers must get consent to conduct screening, be transparent with the volunteer candidates and follow an adverse action process.

Adverse Action

Adverse Action is a two-step process that organizations are required to follow when a volunteer position is denied as the result of a background check. The two steps consist of a pre-adverse notice, sent before making a final decision, followed by a notification of adverse action, sent after a decision not to onboard.

Pre-Adverse Action

Based on the FCRA, an employer must do the following before taking adverse action:

• Advise the volunteer it is thinking about taking adverse action based in whole or in part on information in the consumer report. This can be presented to the volunteer candidate orally or in writing.
• Provide the volunteer with the name of the consumer reporting agency that provided the background screening report.
• Inform the volunteer that they have the right to dispute any inaccurate or incomplete information in the report by contacting the consumer reporting agency or the organization.
• Provide the volunteer with a copy of their full background screening report.
• Give the volunteer a copy of the Summary of Your Rights Under the Fair Credit Reporting Act

Some states and cities have even more stringent processes and require more information from the organization when a hiring decision is made based on the findings of a background screening report. Some states such as New Jersey, New York, Washington and Massachusetts require specific state summary of rights in addition to the Federal Summary of Rights. In New York City, if there is adverse action based on criminal history, employers must complete and provide a copy to the applicant of the New York City Fair Chance Act Form. In Los Angeles, employers must provide a written assessment required by the Los Angeles Fair Chance Initiative for Hiring Ordinance to the applicant.

Adverse Action Notification

Before taking adverse action and after giving notice that you are “considering” action, an organization must wait a “reasonable period” of time. The FTC has stated that five business days is reasonable. However, what is considered “reasonable” depends on how the notification is communicated to the applicant. The key is to the waiting period is to provide enough time so the volunteer candidate can dispute the information before the organization fills the position.

After giving the Pre-Adverse Notification and exhausting the waiting period, an organization can take adverse action. When giving adverse action, an organization must give written notification to the applicant stating what action is being taken and what the decision was based upon, such as the criminal history in the background screening report findings.

The decision to start adverse action can be based in whole in or in part on the findings of the consumer report, but it must come from the organization. With an adverse action decision, a volunteer manager must state the decision for adverse action was not made by the consumer reporting agency. The candidate can dispute the information in their report with the third-party consumer reporting agency. Also, the volunteer candidate has the right to ask for a free copy of the report within 60 days from the consumer reporting agency. If an applicant disputes the findings of the background screening report, then the adverse action process needs to be stopped.

Volunteer Screening Insights

Always review with legal counsel all state and local regulations around the adverse action process. Follow each step of adverse action in the proper order. Send the pre-adverse notification, wait a “reasonable period” and then send the adverse action notification.

For more insights into best practices for the volunteer screening industry, download “Volunteer Screening Trends & Best Practices Report 2018”. You can also watch our webinar, “Volunteer Screening 2018: Research Results & Insights” discussing the top trends from the report on-demand at any time.