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Employers that are either located in Georgia or hiring Georgia residents must abide by the Federal FCRA, and applicable Georgia state employment laws.
This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Georgia state laws. This page also contains steps an end-user must take to stay in compliance with Georgia state laws.
Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.
The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.
For more detailed information on Georgia state laws, please consult your legal counsel.
Info Cubic Ninja's summary
If a background screening report contains criminal record information from Georgia, and it uses information sourced from the Georgia Crime Information Center (GCIC), an employer must adhere to the following rules if they are going to take adverse action against an applicant.
If an employer makes an adverse employment decision based on the information contained in that report, the employer must disclose to the applicant all of the information pertinent to their decision. This includes:
(1) Where the information was originally sourced from – for example, the criminal record information came from the Georgia Crime Information Center;
(2) The specific content of the record – for example, details of the criminal record information the employer received; AND
(3) The effect the record had on the employer’s hiring decision – for example, the decision that was made due to the record.
(a) The center shall be authorized to:
(1) Make criminal history records maintained by the center available to private persons and businesses under the following conditions:
(A) Private individuals and businesses requesting criminal history records shall, at the time of the request, provide the fingerprints of the person whose records are requested or provide a signed consent of the person whose records are requested on a form prescribed by the center which shall include such person’s full name, address, social security number, and date of birth;
(B) The center may not provide records of arrests, charges, and sentences for crimes relating to first offenders pursuant to Article 3 of Chapter 8 of Title 42 in cases where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by Code Section 35-3-34.1 or other law; and
(C) When the identifying information provided is sufficient to identify persons whose records are requested electronically, the center may disseminate electronically criminal history records of in-state felony convictions, pleas, and sentences without:
(i) Fingerprint comparison; or
(ii) Consent of the person whose records are requested; or
(2) Make criminal history records of the defendant or witnesses in a criminal action available to counsel for the defendant upon receipt of a written request from the defendant’s counsel under the following conditions:
(A) Such request shall contain the style of the case and the name and identifying information for each person whose records are requested. Such request shall be submitted to the center;
(B) In cases where the court has determined the defendant to be indigent, any fees authorized by law shall be waived; and
(C) Disclosure of criminal history information to the defendant’s counsel as provided in this paragraph shall be solely in such counsel’s capacity as an officer of the court. Any use of such information in a manner not authorized by law or the court in which such action is pending where the records were disclosed shall constitute a violation of Code Section 35-3-38; and
(3) Charge fees for disseminating records pursuant to this Code section which will raise an amount of revenue which approximates, as nearly as practicable, the direct and indirect costs to the state for providing such disseminations.
(b) In the event that an employment decision is made adverse to a person whose record was obtained pursuant to this Code section, the person will be informed by the business or person making the adverse employment decision of all information pertinent to that decision. This disclosure shall include information that a record was obtained from the center, the specific contents of the record, and the effect the record had upon the decision. Failure to provide all such information to the person subject to the adverse decision shall be a misdemeanor.
(c) Neither the center, its employees, nor any agency or employee of the state shall be responsible for the accuracy of information nor have any liability for defamation, invasion of privacy, negligence, or any other claim in connection with the dissemination pursuant to this Code section and shall be immune from suit based upon any such claims.
(d) Local criminal justice agencies may disseminate criminal history records, without fingerprint comparison or prior contact with the center, to private individuals and businesses under the same conditions as set forth in paragraph (1) of subsection (a) of this Code section and may charge fees as needed to reimburse such agencies for their direct and indirect costs related to the providing of such disseminations.
(d.2) When identifying information provided is sufficient to identify persons whose records are requested, local criminal justice agencies may disseminate criminal history records of in-state felony convictions, pleas, and sentences without:
(1) Fingerprint comparison;
(2) Prior contact with the center; or
(3) Consent of the person whose records are requested.
Such information may be disseminated to private individuals and businesses under the conditions specified in subparagraph (a)(1)(B) of this Code section upon payment of the fee for the request and when the request is made upon a form prescribed by the center. Such agencies may charge and retain fees as needed to reimburse such agencies for the direct and indirect costs of providing such information and shall have the same immunity therefor as provided in subsection (c) of this Code section.
(d.3) No fee charged pursuant to this Code section may exceed $20.00 per person whose criminal history record is requested or be charged to any person or entity authorized prior to January 1, 1995, to obtain information pursuant to this Code section without payment of such fee.
(d.4) The center shall place a high priority on inquiries from any nuclear power facility requesting a criminal history and shall respond to such requests as expeditiously as possible, but in no event shall a response be made more than two business days following receipt of the request.
(e) (1) The Georgia Crime Information Center shall be authorized to provide criminal history records, wanted person records, and involuntary hospitalization records information to the Federal Bureau of Investigation in conjunction with the National Instant Criminal Background Check System in accordance with the federal Brady Handgun Violence Prevention Act, 18 U.S.C. Section 921, et seq.
(2) The records of the Georgia Crime Information Center shall include information as to whether a person has been involuntarily hospitalized. Notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the Georgia Crime Information Center shall be provided such information and no other mental health information from the involuntary hospitalization records of the probate courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by the Probate Judges Training Council and the Georgia Bureau of Investigation to preserve the confidentiality of patients’ rights in all other respects. Further, notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the center shall be provided information as to whether a person has been adjudicated mentally incompetent to stand trial or not guilty by reason of insanity at the time of the crime, has been involuntarily hospitalized, or both from the records of the clerks of the superior courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by The Council of Superior Court Clerks of Georgia and the Georgia Bureau of Investigation to preserve the confidentiality of patients’ rights in all other respects. After five years have elapsed from the date that a person’s involuntary hospitalization information has been received by the Georgia Crime Information Center, the center shall purge its records of such information as soon as practicable and in any event purge such records within 30 days after the expiration of such five-year period.
(f) The council is empowered to adopt rules, regulations, and forms necessary to implement this Code section. The council shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided in accordance with this Code section.
Georgia Code 42-8-63: First Offenders. Effect of discharge under article on eligibility for employment or appointment to office.
Georgia Code 35-3-34.1: Circumstances when exonerated first offender’s criminal record may be disclosed.
(Please see below)
Except as otherwise provided in this article, a discharge under this article is not a conviction of a crime under the laws of this state and may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector.
If an individual has had criminal charges brought against them, but they have been “discharged” under GCA 42-8-63, they have NOT been convicted of a crime under the laws of the State of Georgia. This information may not be used to make an adverse employment decision against the applicant.
The record is usually labeled with a disposition of “First Offender,” and this is considered to be a non-conviction. A “First Offender” is a person who has not been previously convicted of a felony (GCA 35-3-34.1), and the court has decided to offer a deferred sentence. The First Offender must follow court guidelines over a specified period of time, and they will not be convicted. As such, this non-conviction can NOT be used to make an adverse hiring decision.
When a defendant has been exonerated and discharged without court adjudication of guilt pursuant to Article 3 of Chapter 8 of Title 42, the center is authorized to provide the first offender’s record of arrests, charges, or sentences to the employers and entities and under the conditions set forth in Code Section 42-8-63.1.
The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.
Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.
The purpose of the FCRA is to help protect employers, employees, and potential job candidates.
This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.
All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.
Per executive order on February 23, 2015, all questions regarding criminal history are removed from State Employment Applications. Additionally, inquiries into an applicant’s criminal history cannot be made at “the initial stage of the state employment application process.”
This “Ban the Box” order applies to employers in the public sector hiring for the State of Georgia.
You have a right to place a 'security freeze' on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified mail or by electronic means as provided by a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. If you are actively seeking a new credit, loan, utility, telephone, or insurance account, you should understand that the procedures involved in lifting a security freeze may slow your applications for credit. You should plan ahead and lift a freeze in advance of actually applying for new credit. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place.
To provide that authorization you must contact the consumer reporting agency and provide all of the following:
A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance. You have a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, knowingly or willfully misuses file data, or fails to correct inaccurate file data.
Unless you are a victim of identity theft with a police report or other official document acceptable to a consumer reporting agency to verify the crimes, or you are 65 or older, a consumer reporting agency has the right to charge you a fee of no more than $3.00 to place a freeze on your credit report."
Wills v. Starbucks Corp
Plaintiffs allege that Starbucks did not provide him and others applying for jobs at Wal-Mart with proper disclosures before initiating a background screening report, and did not follow proper adverse action procedures allowing them to correct any inaccuracies they may have found.
Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.