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BACKGROUND CHECK / JOB OFFER. Contacted and offered work. Accepted the work. Background check never done.

Tarzana, CA |

I was contacted, offered position with law firm. I accepted. Filled out Application for Background Check. Contacted firm as to start date. Was told something wrong with background check by paralegal and by managing partner. This was 2 weeks after submission of application. Okay 3 weeks later, contacted them again by email and requested copy of background check according to rules of Fair Credit Reporting Act. They told me job is at-will, not contractual, etc. I informed them they made an offer I accepted. What is the problem? The answer came back that Application (although it was received) was never submitted to HR Dept. for a background check. Now, if I had not gone forward with something else and had depended on this job, IS THIS FAIR, to jack me around like this?

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Attorney answers 3


What is FAIR and what is LEGAL are not always the same, and this is the case in any number of employment law issues. Many ask whether "at will" employment, which is the law in 49 and 1/2 states, is "fair" at all. "Fair" almost always depends on whose perspective is used as the measure -- i.e., employer or employee?

But equally important, I think, is the fact that statutory and regulatory legal protections often turn or rest on very fine and "technical" distinctions. Here, for example, almost certainly there was not completed the elements of a contract (offer, acceptance, consideration), although to your eyes, you seem to have assumed that you enjoyed the benefits and protections of contract law. Once you understand that a legal contract had not yet been achieved, is the situation "unfair?"

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.


Unfortunately, there is in employment law often a difference between unfair and illegal.
Your potential employer has the right to terminate your employment at anytime, except if the decision is motivated by discrimination against a protected class such as gender, race, religion, sexual orientation, military service, disability, etc. or opposing illegal conduct. Here, no facts are presented supporting such improper motivations. There is no law against merely bad management.


I agree with my colleagues that the right question is whether their actions are illegal, not whether they are fair. Here, the paralegal and the managing partner both told you that there was a problem with the background check. As you seem to be aware, the Fair Credit Reporting Act has stringent requirements for what a company must do in order to deny you a job on the basis of a background check. Although they denied having done it later, the fact that two people told you that one had been done is good evidence that in fact a background check was performed.

Moreover, from what you said, you were actually offered the job, and it was later taken away. If it was on the basis of the background check, they were required to follow the FCRA requirements, which they did not do here.

The problem, of course, will be one of proof. It will be up to you to prove (1) that you were actually offered the job, and (2) that the offer was withdrawn on the basis of the background check. With them having denied even doing one, the second part will be particularly difficult.

I hope this information is helpful to you.

Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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