First Advantage Employment Advantage Subscriber Application and Service Agreement
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The information submitted on this Subscriber Application and Service Agreement will be used to determine eligibility in accessing information provided by First Advantage. First Advantage reserves the right to reject this Agreement for any reason whatsoever without explanation, or recourse against First Advantage and/or its employees or officers. Additionally, the applicant hereby authorizes First Advantage to independently verify the information provided herein. As part of your application for services, we may be required to verify bank/credit information, business or client references on your organization.
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BACKGROUND SCREENING SERVICES AGREEMENT
This BACKGROUND SCREENING SERVICES AGREEMENT ("Agreement") by and between First Advantage Enterprise Screening Corporation together with its Affiliates, a Delaware Corporation with its principal place of business at 1 Concourse Parkway NE, Suite 200, Atlanta, GA 30328 ("Service Provider") and the undersigned ("Client").
1. Description of Services. Client may order consumer reports ("Reports") from Service Provider for "employment purposes" as that term is defined under the Fair Credit Reporting Act 15 USC 1681 et. seq. ("FCRA") including but not limited to: evaluating the subject of the report ("Consumer") for employment, promotion, reassignment, or retention as an employee, volunteer, or as an independent contractor ("Employment Purposes"). Client certifies that Client will order and use Reports for Employment Purposes only and for no other purpose. Reports contain the information listed on Service Provider's online portal (the "Services"). Service Provider does not provide or include any arrest record information in Reports unless such arrest record is part of a pending criminal action and will only provide search results as permitted under applicable laws.
2. Term. The term of this Agreement shall begin on the Effective Date and continue for three (3) years ("Initial Term"), and shall automatically renew for additional periods of twelve (12) months ("Renewal Term"), unless written notice of termination is provided to either party at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term.
3. Service Fee; Invoicing. Client shall pay to Service Provider such amounts at the pre-established effective rates set forth for this program as shown on Service Provider's online portal. Client shall pay to Service Provider the fees incurred for the use of the Services through the online portal at the time the Services are ordered.If Service Provider has agreed to invoice Client then Client agrees it may be invoiced for services rendered to Client during the preceding calendar month. All payments due and payable shall be made within thirty (30) days of date of invoice and remitted through the following acceptable methods of payments: (i) electronic funds transfer ("EFT"), (ii) automatic clearing house ("ACH"), (iii) wire transfer, or (v) check (as listed, "Acceptable Remittance"). Payments remitted through a method other than an Acceptable Remittance are subject to additional fees. Amounts not paid when due shall accrue interest at a rate of fifteen percent (15%) per annum or the limits imposed by applicable law, whichever is lower. Interest paid in excess of those limits shall be refunded to Client by applying a credit of the amount of excess interest paid against any amounts outstanding in such invoice. If the amount of excess interest paid exceeds any amounts outstanding, the portion exceeding those amounts shall be refunded in cash to Client. Fees for services rendered pursuant to this Agreement are subject to change during the term of this Agreement, but not more than once annually. An increase in fees shall not exceed the then current rate of the consumer price index for the respective annual term. Service Provider will provide at least sixty (60) days' notice of such pricing change. Fees set forth on Service Provider's online portal do not include third party pass through costs. Client agrees to pay any increases in fees, and/or surcharges imposed by Service Provider's vendors and subcontractors invoiced to Service Provider, as they may occur anytime during the term. The prevailing party in any action to enforce the terms of this Agreement shall be entitled to an award of reasonable attorneys' fees and costs. Client's obligation to pay invoiced amounts is not subject to any offset, defense or counterclaim.
4. Legal Compliance.
a. Client acknowledges that it will comply with all applicable laws and regulations when using Reports provided pursuant to this Agreement. Applicable laws shall include but not be limited to: the FCRA, the Americans With Disabilities Act, the Drivers Privacy Protection Act ("DPPA"), the Gramm-Leach-Bliley Act ("GLB"), federal and state employment laws, applicable national, provincial or local laws of foreign jurisdictions and other applicable laws including but not limited some state laws which limit the use of credit information in connection with employment decisions.
Client agrees that each time it orders a Report,
the order constitutes Client's reaffirmation of its certifications in the "Permissible
Purpose Certification" (attached hereto as Exhibit A) with respect to such Report.
Client will establish and follow security measures designed to prevent unauthorized access to Client's data files. Client agrees to comply with the "Access Security Requirements" as set forth at http://www.fadv.com/Portals/0/Downloads/FCRA/AccessSecurityRequirements040809.pdf. which may be modified from time to time by Service Provider. Upon the occurrence of a Client Security Event (as defined below), Client shall, in compliance with law, notify the individuals whose information was potentially accessed that a Client Security Event has occurred, and any other parties (including but not limited to regulatory entities and credit reporting agencies) as may be required. Unless required by applicable law, such notification shall not reference Service Provider or Service Provider's product, nor shall Service Provider be otherwise referenced in connection with the Client Security Event, without Service Provider's express written consent. Client shall be solely responsible for, all costs associated with, any other legal or regulatory obligations which may arise under applicable law in connection with a Client Security Event, including but not limited to, costs for credit monitoring. Client shall indemnify Service Provider for a Client Security Event. A Client Security Event shall be defined as shall be defined as the unauthorized acquisition or access to personally identifiable information made available through the provision of the services while in the possession or under the control of Client, including but not limited to that which is due to use by an unauthorized person or due to an unauthorized use. Client acknowledges it has received a copy of the Consumer Financial Protection Bureau ("CFPB") "Summary of Consumer Rights" located at http://www.fadv.com/Portals/0/Downloads/cfpb-fcra-summary-of-rights.pdf. Notice to Users of Consumer Reports located at http://www.fadv.com/Portals/0/Downloads/cfpb-notice-to-users-fcra.pdf. and "Background Checks: What Employers Need to Know" http://business.ftc.gov/documents/0487-background-checks-what-employers-need-know. Client shall use the Reports for a one-time use only and certifies that it shall not disclose the Report to any party not involved in the current employment decision. Furthermore, Client shall not use the data from the Report to create, compile, or maintain a database other than for internal business purposes only. Client acknowledges that Service Provider may be required to respond to Consumer's requests for access, correction, or deletion of their personal information.
c. Client agrees it is the end-user of all Reports, and will not resell, sub-license, deliver, display, or otherwise distribute any Report, or any information in a Report, to any third party, except to the Consumer or as otherwise required under law. Client agrees not to market the Reports through the Internet. Client warrants that Client's use of the Reports shall be for only legitimate business purposes relating to its business. Client shall train employees on Client's obligations under this Agreement prior to use of Services and conduct a review of such obligations with employees who have access to Services no less than annually. Client shall keep records of such training. Client shall notify Service Provider in writing within ten (10) days of any changes to Client's name, federal tax identification number, address, telephone number, contact person, sale or closure of business, merger or change in ownership of fifty percent (50%) or more of the stock or assets of Client, change in nature of Client's business. Client understands that certain changes may require additional Client credentialing. Client agrees to notify Service Provider in writing if Client uses a third party processor (the "Third Party Processor"), who will have access to Services or information provided. Client's Third Party Processor is required to execute a Third Party Processor Agreement with Service Provider. Client is responsible for the acts and omissions of the Third Party Processor.
d. Service Provider may modify the scope of Services at any time upon reasonable notice to Client, unless prior notice cannot be provided due to Service Provider's obligations to comply with law, regulation and/or data provider requirements. Client agrees to comply with all such changes, including any additional fees. Service Provider may at any time mask or cease to provide Client access to any Services or portions thereof which Service Provider may reasonably deem to be sensitive or restricted information due to legal, regulatory or data provider's requirements.
e. If Client requests Service Provider to make available any of Client's disclosure and authorization form(s) to its candidates/applicants on its behalf then: (i) Client shall provide a copy of the form(s) to Service Provider, including any required notices, and (ii) Service Provider shall make such form(s) available to Client's candidates/applicants through Service Provider's platform. The parties agree if Client requests Service Provider to provide adjudication services on its behalf then: (i) Client shall provide its adjudication matrix to Service Provider, and (ii) Service Provider shall apply the adjudication matrix pursuant to Client's instructions. Client acknowledges that Service Provider did not provide any advice or counsel with respect to Client's disclosure and authorization forms or adjudication matrix.
f. Motor Vehicle Records. To the extent Client orders Motor Vehicle Reports ("MVRs") from Service Provider the following shall apply: Client shall complete any specific state forms, certificates of use or other documents or agreements including any changes, supplements or amendments thereto imposed by the states. Further, Client shall use MVRs only for purposes permitted by the DPPA and any equivalent state laws, and obtain the written authorization of the Consumer before ordering such MVR. All employees, officers, and temporary employees of Client that receives and has access to MVRs from Service Provider shall be bound by similar confidentiality obligations to those contained in the MSA. Client shall at all times maintain safeguards and procedures to ensure the security and protection of data and documents furnished by Service Provider. Minimum security measures shall include controlling access to data storage and production areas, secure destruction of data and documents, and other reasonable security measures. For any MVRs distributed to Client via the internet, Client must use a web server that supports and enables Secure Socket Layer (SSL), password-protected membership and then-current encryption technology. Client may only distribute MVRs to its employees using a web server that supports and enables SSL, password-protected membership and then-current encryption technology.
g. Operations in New York. To the extent Client has operations in the State of New York the following shall apply: Client shall comply with all relevant privacy and anti-discrimination laws in using any information provided by Service Provider. Any adjudication matrix or instructions provided by Client in connection with the Direct Advantage (or equivalent) platform (including but not limited to any FCRA required consent and disclosure forms or language) that Client has provided to Service Provider (or instructed Service Provider to implement) have been reviewed by Client's legal counsel or advisers and will comply with applicable federal, state, and local privacy and anti-discrimination laws, including but not limited to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; New York State General Business Law §§ 380 et seq.; New York Executive Law §§ 296(1), (15) and (16); New York Correction Law §§ 752-53; and New York City Administrative Code § 8-107(10). Client acknowledges that Service Provider has provided the "Notice to Clients Operating Within the State of New York" located at https://www.fadv.com/Portals/0/Downloads/legal/First_Advantage-NY_Exhibit_10142016.pdf. Client is advised to review such notice prior to its execution of this Agreement. Vermont Residents. To the extent Client orders a credit report on a Vermont resident, Client shall comply with the Vermont Labor Law, 21 V.S.A. § 495i and with the Vermont Fair Credit Reporting Act, 9 V.S.A. § 2480e.server that supports and enables SSL, password-protected membership and then-current encryption technology.
h. Equifax Data. To the extent Client obtains Equifax data from Service Provider as part of the Services (the "Equifax Data") and notwithstanding anything to the contrary in this Agreement, Client agrees to the following terms, as required by Equifax: (i) Service Provider may terminate for its convenience the Services that contain Equifax Data upon ten (10) days prior written notice to Client without incurring any liability to Client resulting therefrom and (ii) Client shall hold Equifax and its agents harmless from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys' fees and court costs) brought against, or suffered by Equifax related to Client's use or receipt of Equifax Data.
i. Experian Data. To the extent Client obtains Experian data from Service Provider as part of the Services (the "Experian Data") and notwithstanding anything to the contrary in this Agreement, Client agrees to the following terms, as required by Experian: i. Client acknowledges that the Services containing Experian Data may also contain information from the Death Master File as issued by the Social Security Administration ("DMF"). Client certifies pursuant to Section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102 that, consistent with its applicable FCRA or GLB use of Experian Data, Client's use of deceased flags or other indicia within the Experian Data is restricted to legitimate fraud prevention or business purposes in compliance with applicable laws, rules regulations, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1). Client further certifies that Client will not take any adverse action against any Consumer without further investigation to verify the information from the deceased flags or other indicia within the Experian Data. ii. Client certifies that it shall implement and maintain a comprehensive information security program written in one or more readily accessible parts and that contains administrative, technical, and physical safeguards that are appropriate to Client's size and complexity, the nature and scope of its activities, and the sensitivity of the information provided to Client by Service Provider; and that such safeguards shall include the elements set forth in 16 C.F.R. § 314.4 and shall be reasonably designed to (i) insure the security and confidentiality of the information provided by Service Provider, (ii) protect against any anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any Consumer.
5. Indemnification. Both parties shall indemnify, defend and hold harmless the other party from and against any claim, suit, proceeding, damages, costs, expenses (including, without limitation, reasonable attorneys' fees and court costs) brought by a third party against or suffered by the other party arising from the indemnifying party's violation of law, negligence or failure to comply with the terms and conditions of this Agreement.
6. DISCLAIMER OF WARRANTIES. Service Provider and its Affiliates make no and disclaim all warranties and representations with respect to the Services provided pursuant to this Agreement, whether such warranties and representations are express or implied in fact or by operation of law , contained in or derived from this Agreement, any other documents referenced in this Agreement, or any other materials or communications whether oral or written, including without limitation implied warranties of merchantability and fitness for a particular purpose and implied warranties arising from the course of dealing or a course of performance with respect to the accuracy, validity, or completeness of any Service.
7. Limitation of Liability. Neither party nor its affiliates shall be liable for any indirect, incidental, contingent, consequential, punitive, exemplary, special or similar damages, including but not limited to, loss of profits or loss of data, whether incurred as a result of negligence or otherwise. Neither party's aggregate liability damages arising out of or in connection with this Agreement, including as a result of any negligence on the part of either party or its Affiliates, but excluding damages arising from either party's fraud, gross negligence or intentional misconduct, shall not exceed One Million ($1,000,000.00) USD.
8. Early Termination. Either party may terminate, upon thirty (30) days' notice, this Agreement if the other party fails to comply with the terms and conditions of this Agreement, including Client's failure to make timely payments in accordance with applicable fee and payment terms, and the other party fails to cure such default within such thirty (30) day period. In addition to the foregoing, Service Provider may terminate or immediately suspend this Agreement or Client's right to receive any or all services under this Agreement if Client fails to comply with any law applicable to the services provided to Client pursuant to this Agreement. This Agreement shall automatically terminate and be of no further force and effect if Client makes a general assignment for the benefit of creditors or a petition in bankruptcy or under any insolvency law is filed by or against Client and such order remains undismissed for thirty (30) days after its filing. In the event of a cancellation, Client shall also remain liable for all fees: (i) directly related to third party fees for Services rendered up to the date of termination, if applicable, and (ii) related to any custom configuration or development services cancelled prior to completion. Client may obtain historical data post termination of this Agreement for a fee and upon the mutual execution of applicable documentation
9. Force Majeure. If any party fails to perform its obligations (except for payment obligations) because of acts of God, governmental restrictions, regulations or controls, judicial orders, enemy or hostile government action, civil commotion, telecommunications failure, Internet failures, fires or any causes beyond the reasonable control of the party obligated to perform, then that party's performance shall be excused provided that such party notifies the other party as soon as practicable of the existence of such condition and uses its best efforts to resume performance in an expeditious manner.
10. Notices. Any notice to Service Provider shall be sent to the address provided on page 1 of this Agreement with a copy to FADVLegal@fadv.com and to Client at the address provided.
11. Audit. In order to comply with all applicable laws, regulations, or contractual obligations with its data providers, and its internal policies, Service Provider, or its designee, may conduct periodic reviews of Client's use of the Services through written requests for information and may, upon reasonable notice and during Client's regular business hours, no more than once annually unless required by Service Provider's regulators or data providers, audit Client's records, processes and procedures related to Client's use, storage and disposal of those Services and information received therefrom, including performing site visits at Client's premises. Client agrees to cooperate fully with all audits and to respond to any audit inquiry within ten (10) business days, unless an expedited response is required.
12. Confidentiality. The term "Confidential Information" shall mean this Agreement and all data, trade secrets, business information and other information of any kind whatsoever that one party hereto ("Discloser") discloses, in writing (including by electronic transfer of information by e-mail, over the Internet or otherwise), orally, visually or in any other medium, to the other party hereto ("Recipient") or to which Recipient obtains access and that relates to Discloser. Each of the parties, as Recipient, shall not disclose Confidential Information of the Discloser to any third party during or after the Term of this Agreement, other than on a "need to know" basis and then only to: i) Recipient's employees; (ii) its agents and consultants, provided that all such persons are subject to a written confidentiality agreement no less restrictive than the provisions of this Section; and (iii) as required by law or as otherwise expressly permitted by this Agreement. Recipient shall not use or disclose Confidential Information of the Discloser for any purpose other than to carry out this Agreement. Recipient shall treat Confidential Information of the Discloser with no less care than it employs for its own Confidential Information of a similar nature, but not less than a reasonable level of care. All Confidential Information and any results of processing Confidential Information or derived in any way therefrom shall at all times remain the property of the Discloser. Upon expiration or termination of this Agreement for any reason or at the written request of Discloser, Recipient shall promptly return to the Discloser all of Discloser's Confidential Information, except Recipient may retain a copy as required for regulatory compliance or accounting purposes. To the extent legally permitted, Recipient shall notify Discloser of any actual or threatened requirement of law to disclose Confidential Information promptly upon receiving actual knowledge thereof and shall reasonably cooperate with Discloser's reasonable, lawful efforts to resist, limit or delay disclosure. The obligations of confidentiality in this Section shall not apply to any information that (i) Recipient rightfully has in its possession when disclosed to it, free of obligation to Discloser to maintain its confidentiality; (ii) Recipient independently develops without access to Discloser's Confidential Information; (iii) is or becomes known to the public other than by breach of this Section by Recipient or ( iv) is rightfully received by Recipient from a third party without the obligation of confidentiality.
13. Governing Law. This Agreement is governed by the substantive and procedural laws of the State of Georgia, exclusive of conflicts of laws principles. The parties agree to submit to the exclusive jurisdiction of and venue in the State or Federal courts of Georgia.
14. Assignment. Neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the non-assigning party, which shall not be unreasonably withheld.
15. Entire Agreement; Miscellaneous. This Agreement and the exhibits attached hereto, constitute the final and entire agreement between the parties with respect to the Services and shall supersede all prior agreements between the parties with respect to such Services. There are no representations, warranties, or agreements among the parties with respect to the Services contained herein, which are not fully expressed in the entire Agreement. This Agreement can be executed in counterparts and electronic signatures will be deemed originals. If any one or more provisions of this Agreement or any exhibit is held to be invalid or otherwise unenforceable by a court of competent jurisdiction, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the enforceability of the remaining provisions shall be unimpaired. The headings in this Agreement are inserted for reference and convenience only and shall not enter into the interpretation hereof. The provisions of Sections 5, 6, 7, 10, 12, 13, 15 and 16 of this Agreement shall survive termination or expiration of this Agreement. A listing of Service Provider's Affiliates is set forth at: https://www.fadv.com/Portals/0/Downloads/legal/First_Advantage-NY_Exhibit_10142016.pdf.. No amendment to change, waiver or discharge this Agreement will be valid unless executed in writing by an authorized representative of each party. Service Provider is an independent contractor. Neither party shall act nor represent itself as an authorized agent or representative of the other. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
16. Press Releases. Upon prior written consent either party may reference the other party in press releases and case studies.
As a condition to ordering and obtaining consumer reports from First Advantage Enterprise Screening Corporation ("Service Provider"), "Client" (defined as the employer/company identified below), agree as follows:
1. Client certifies that the nature of its business is:
2. Client orders Consumer Reports from Service Provider for the following purposes under the FCRA and as such reports will not be used for any other purpose:
Please identify which of the following apply by selecting "yes" or "no":
Employment (which includes hiring, promotion, assignment, and retention decisions):
YES NO Pre/Post Employment
YES NO Volunteer
YES NO Contractor
3. Client certifies to Service Provider that with respect to each consumer report ("report") ordered from Service Provider:
a. It will use such report solely for employment purposes and for no other purpose. Employment purposes include the evaluation of the subject of the report for employment, promotion, reassignment, or retention as an employee, volunteer or independent contractor. The subject of the report ("Applicant") includes any consumer who is an applicant, potential employee or employee.
b. Prior to ordering the report, or causing the report to be ordered:
i. Client has made a clear and conspicuous written disclosure to the Applicant, in a document consisting solely of the disclosure, that a report may be obtained for employment purposes; and
ii. Client has obtained the Applicant's written authorization to obtain the report; such authorization may be in the same document as the disclosure.
c. Prior to taking any adverse action based in whole or in part on the report, Client will provide the following to the Applicant:
i. A copy of the report; and
ii. A written description of the rights of the Applicant under the Fair Credit Reporting Act ("FCRA") as prescribed by the Consumer Financial Protection Bureau ("FCRA Summary of Rights"). Service Provider has provided Client a copy of the FCRA Summary of Rights, and it can be obtained from Service Provider's website or the CFPB's website (http://www.consumerfinance.gov/).
d. Before Client takes any adverse action against the Applicant based in whole or in part on the report, Client shall give the Applicant a reasonable amount of time after the copy of the report and FCRA Summary of Rights have been received to dispute the accuracy and completeness of the information in the report.
e. If Client takes any adverse action with respect to the Applicant based in whole or in part on any information in the report, it will provide the Applicant with all of the following:
i. Notice of the adverse action;
ii. Service Provider's name, address, and toll-free telephone number;
iii. A statement that Service Provider did not make the decision to take the adverse action and is unable to provide the Applicant the specific reasons why the adverse action was taken;
iv. Notice of the Applicant's right to obtain a free copy of the report from Service Provider if, within 60 days after receipt of the notice, he or she requests a copy from Service Provider; and
v. Notice of the Applicant's right under the FCRA to dispute with Service Provider the accuracy or completeness of any information in the report.
f. Client will not use any information in the report in violation of any applicable Federal or State equal employment opportunity law or regulation.
4. In some cases, Client may order a report from Service Provider for employment purposes that would also constitute an "investigative consumer report." (In general, an investigative consumer report is one in which information has been obtained through personal interviews with friends, neighbors, or associates of the Applicant or others with whom the Applicant is acquainted or who may have knowledge concerning any such items of information, and the information is more than just a verification of facts.) In the event that Client orders from Service Provider any investigative consumer report, then in addition to the other certifications herein, Client certifies as follows with respect to each investigative consumer report ordered:
a. Not later than 3 days after the date of requesting such report from Service Provider, Client will mail or otherwise deliver a written disclosure to the Applicant containing the following information:
i. A statement that clearly and accurately discloses that an investigative consumer report on the Applicant may be made and such report may contain information as to his or her character, general reputation, personal characteristics and mode of living (as applicable); and
ii. A statement informing the Applicant of his or her right to request in writing additional disclosures about the nature and scope of the investigation and a written summary of rights (FCRA Summary of Rights).
b. Upon written request by the Applicant within a reasonable period of time following the Applicant's receipt of the disclosure referred to in subsection a. above, Client shall make a complete and accurate written disclosure of the nature and scope of the investigation requested. Client will mail or otherwise deliver the nature and scope disclosure to the Applicant not later than 5 days after the date on which the request for such disclosure was received from the Applicant or such investigative consumer report was first requested, whichever is later.
5. If Client operates in California or orders a report on a California resident, in addition to the other certifications herein Client hereby certifies for each California report ordered from Service Provider that:
b. It will provide a disclosure with a box that can be checked by the Applicant to indicate that he/she wants to obtain a free copy of the Report and Client will send such a copy within three (3) business days of Client's receipt of the Report if the box is checked; and
c. Client will provide the Applicant a summary of his or her rights under California Civil Code Section 1786.22.
d. Client is not a retail seller, as defined in Section 1802.3 of the California Civil Code and does not issue credit to consumers who appear in person on the basis of applications for credit submitted in person. Furthermore, if Client becomes a Retail Seller who extends credit in Point of Sale transactions, Client agrees to provide written notice of such to Service Provider prior to using credit reports with Point of Sale transactions as a Retail Seller, and will comply with the requirements of a Retail Seller conducting Point of Sale transactions, as provided in the California Civil Code.
6. Client is aware that in addition to the FCRA and other federal laws, state laws may be applicable to the ordering and use of consumer and/or investigative consumer reports, including but not limited some state laws which limit the use of credit information in connection with employment, and agree to comply with all applicable federal and state laws and any changes or revisions to such laws.
7. Client certifies to Service Provider that with respect to each driving record information or motor vehicle report ordered from Service Provider, it will comply with each of the above requirements relating to consumer reports, and will also comply with the Driver's Privacy Protection Act of 1994 and any of its amendments in ordering and use of the driving record information or motor vehicle report.
8. Client agrees that all certifications and agreements herein are of a continuing nature and are intended to apply to each consumer and/or investigative consumer report ordered from Service Provider. Client agrees to keep all documentation signed by the Applicant required herein for at least five (5) years after the date of the report to which such documentation relates and to provide Service Provider copies upon request.
9. In the event that Client is intending to include in its adverse action letter the notice required by Section 380g of the New York General Business Law, Client acknowledges and agrees that the adverse action letter mailing services, if subscribed to with Service Provider, only fulfill the requirements of New York law to the extent that the inclusion of a criminal record in a Consumer Report would result in an adverse action against the Consumer. Client acknowledges and agrees that it shall retain responsibility for the delivery of any and all notices required by New York law under any other circumstances.
Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses, shall be fined under title 18, United States Code, imprisoned for not more than two (2) years, or both.
GLB PERMISSIBLE PURPOSE
Some services may use and/or display nonpublic personal information that is governed by the privacy provisions of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and its implementing regulations. Client certifies it has the written consent of the Consumer, in accordance with 15 U.S.C. 16816, and Client further certifies it will use such information obtained from services only for the purpose(s) to which such Client has consented. Client acknowledges and agrees that it will recertify its permissible uses of GLB data upon request by Service Provider. Client certifies with respect to GLB data received through the Services that it complies with the Interagency Standards for Safeguarding Customer Information issued pursuant to the GLB.
Some services may use and/or display personal information, the use of which is governed by the Drivers Privacy Protection Act (18 U.S.C. § 2721 et seq.) and related state laws (collectively, "DPPA"). Client certifies it has the written consent of the Consumer to which the information pertains and further certifies it will use such information obtained from services only for the purpose(s) to which such Consumer has consented. The text of the DPPA may be found at http://uscode.house.gov/download/pls/18C123.txt. Client acknowledges and agrees that it will recertify, in writing, its permissible uses of DPPA Data upon request by Service Provider.
I, ON BEHALF OF THE CLIENT, HEREBY AGREE TO COMPLY WITH THE EMPLOYER CERTIFICATION NOTED HEREIN. I FURTHER CERTIFY THAT I HAVE DIRECT KNOWLEDGE OF THE FACTS CERTIFIED HEREIN AND AM AUTHORIZED BY THE CLIENT TO AGREE TO THESE ITEMS HEREIN ON ITS BEHALF.
Exhibit B - Statutory Summary: A Notice to Clients Operating Within the State of New York
Federal, New York State and New York City law strictly regulate the use of criminal background reports by employers operating within the State of New York. Some of the relevant laws, and their key provisions, are set forth in the chart below.
Please note that states other than New York may have laws that contain identical or similar requirements.
This document is intended only as a general summary of certain requirements of these statutes. Our goal is to update this information periodically. The information contained in this document is provided for information purposes only and does not constitute legal advice. Service Provider strongly encourages its customers to consult with legal counsel regarding the applicability and effect of all of these laws.
Title VII of the Civil Rights Act of 1964
42 U.S.C. §§ 2000e et seq.
· In interpreting Title VII, the Equal Employment Opportunity Commission takes the position that excluding applicants from consideration for employment on the basis of their arrest or conviction records creates a rebuttable presumption of an unlawful adverse impact on Black and Hispanic applicants.
Federal Fair Credit Reporting Act
15 U.S.C. §§ 1681 et seq.
· Prohibits the reporting of records of arrest older than seven years or until the governing statute of limitations has expired, whichever is longer.
· Prohibits the reporting of certain other adverse items of information older than seven years.
New York State Fair Credit Reporting Act
N.Y. Gen. Bus. Law §§ 380 et seq.
· Prohibits the reporting of records of arrest or criminal charges unless there has been a criminal conviction for such offense, or unless such charges are still pending.
· Prohibits the reporting of records of convictions of crimes which, from the date of disposition, release, or parole, are older than seven years.
· Prohibits the reporting of certain other adverse information older than seven years.
New York Labor Law
N.Y. Labor Law § 201-f
· Requires employers in the state of New York to conspicuously post a copy of article 23-A of the correction law and any regulations promulgated thereunder relating to the licensure and employment of persons previously convicted of one or more criminal offenses.
New York Human Rights Law
N.Y. Exec. Law §§ 296(1), (15) and (16)
· Prohibits an employer from refusing to hire or employ a person, or from barring or discharging a person, or from discriminating against a person in compensation or in terms, conditions or privileges of employment based on the person's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.
· Limits the circumstances in which an individual may be denied employment by reason of his or her having been convicted of a criminal offense to those set forth in N.Y. Correction Law §§ 752-53.
· Prohibits an employer from making an inquiry about or acting adversely with respect to an individual based on a non-pending arrest or criminal accusation of such individual that was followed by a termination of that action or proceeding in favor of such individual (such as most convictions for violations, sealed convictions or dismissed charges).
New York Correction Law
N.Y. Correction Law §§ 752-53
· Prohibits an employer, except under limited circumstances, from denying an application or acting adversely upon an employee based upon the applicant's or employee's having been convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the individual has been convicted of a criminal offense.
· Requires employers to consider, among other things, whether there is a direct relationship between the criminal offense and the type of employment sought, whether the individual has been issued a certificate of relief or a certificate of good conduct, and eight specific factors listed in Section 753. Among the eight factors are the duties and responsibilities of the position; the bearing of the offense on the applicant's ability to perform the responsibilities; the time that has elapsed since the offense; the age of the person at the time of the offense; the seriousness of the offense; information produced by the applicant regarding his or rehabilitation and good conduct; and the legitimate interest of the employer in protecting property and the safety and welfare of individuals or the public. In making a determination, the employer shall give consideration to a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation.
New York City Administrative Code § 8-107(10)
N.Y. City Admin. Code § 8-107(10)
· Prohibits employment practices that violate N.Y. Correction Law §§ 752-53.
122.104.538 - V# 11042016