Pre-Employment Background Checks and FCRA Compliance for West Virginia Employers

Hiring the right team is essential for any West Virginia business, but bringing someone new into your company carries risks. You want to ensure your new employees are trustworthy, especially if they will handle company finances, drive company vehicles, or work with vulnerable populations. Background checks are an excellent tool to protect your business, but they are heavily regulated by federal and state laws.

If you fail to follow the proper legal procedures when checking an applicant's past, your business could face devastating federal lawsuits for violating privacy rights. Navigating these rules requires careful attention to detail. Below, we break down the legally compliant way to conduct pre-employment screening, and we highly suggest consulting an employment lawyer from our directory to review your hiring documents.

Following the Fair Credit Reporting Act (FCRA)

Whenever you hire a third-party company to run a background check-whether it is for criminal history, driving records, or credit scores-you are subject to the 15 U.S.C. § 1681. The FCRA protects consumers from inaccurate information and guarantees their right to know what is being reported about them.

Notice and Consent Requirements

Before you run a check, you must provide the applicant with a clear, standalone document stating that a background report will be obtained for employment purposes. This cannot be buried in the fine print of the job application; it must be its own separate page. You must also receive the applicant's written authorization (signature) consenting to the check before you submit their information to the screening agency.

The Adverse Action Process

If the background check comes back with negative information-like a recent felony-and you decide not to hire the person based on that information, you must follow a strict two-step 'Adverse Action' process. First, you must send a 'Pre-Adverse Action Notice' along with a copy of the background report and a summary of their FCRA rights. You must give them a reasonable amount of time (usually 5 business days) to dispute the information in case it is a case of identity theft or an error. Only after that waiting period can you send the final 'Adverse Action Notice' officially rejecting their application.

Navigating West Virginia State and Local Rules

While the FCRA governs the nation, West Virginia employers must also navigate specific state and municipal regulations when hiring.

Local Municipality Restrictions (Ban the Box)

West Virginia does not currently have a statewide 'Ban the Box' law for private employers, meaning you can generally ask about criminal history on an initial job application. However, if you are a state or municipal employer, or if you operate in specific cities that adopt progressive hiring ordinances, you may be restricted from asking about criminal history until later in the interview process. Always check local city codes in places like Charleston or Morgantown.

Daycare Workers and the WV Child Abuse Registry

If you run a daycare, school, or any business serving children or vulnerable adults, standard background checks are not enough. You must also check the state's specialized registries. Under W. Va. Code § 15-2C-2, specific employers must vet applicants against state abuse databases. You will typically need the applicant to fill out Form WV CARES, West Virginia, Department of Human Services, Self-Disclosure Application and Consent Form, which is processed by the West Virginia Department of Human Services, Charleston.

Driving Records and Credit History Checks

If an applicant will be driving a company truck or a delivery van, you should pull their Motor Vehicle Record (MVR). This requires FCRA compliance just like a criminal check. Similarly, if the applicant is applying for a financial role, such as a bookkeeper or bank teller, you can check their credit report. However, you should only pull credit reports when it is directly relevant to the job duties to avoid claims of discriminatory hiring practices.

Protecting Your Business from Negligent Hiring Liability

Employers have a legal duty to provide a safe environment for their customers and existing staff. If you hire someone with a long history of violent offenses without checking their background, and they assault a customer, your business can be sued for 'negligent hiring.' Performing standardized, compliant background checks through agencies approved by the West Virginia State Police, South Charleston is your best defense against these devastating lawsuits.

Costs & Timelines

The cost of compliance is relatively small compared to the cost of a lawsuit:

• Background Checks: A basic third-party criminal background check usually costs between $20 and $50 per applicant.
• State Registry Fees: Official checks through the WV State Police or Department of Human Services often have nominal processing fees, usually around $10 to $25.
• Lawyer Fees: Having an employment lawyer draft your FCRA-compliant consent forms and Adverse Action letters usually costs a flat fee of $300 to $800.
• Timeline: Standard background checks take 1 to 3 business days to return results, while state abuse registry checks can take 1 to 2 weeks.

Frequently Asked Questions (FAQ)