What to know when you are denied a job because of a background report.
An incorrect or misleading background report can cost a worthy job applicant or an existing employee a job. This guide outlines an applicant or employee's rights when employers use background reports to deny employment or to terminate an existing employee.
How the employer obtained your background report or "background check" in the first place.Background reports (sometimes called background checks) are classified as "consumer reports" under a federal statute called the Fair Credit Reporting Act (FCRA). Consumer reports include criminal background reports, employment history reports and credit reports, all of which contain your sensitive data. Because these reports are sensitive in nature, the FCRA requires that employers first provide you with a "Clear and Conspicuous" written disclosure which solely informs you that the employer will obtain your background report. This disclosure must be in a document consisting only of the disclosure (i.e., it cannot be attached to or buried in an application). After you are provided with written notification of the intent to pull your background report, the employer must obtain your written consent to obtain your consumer information (background check, background report, etc.)
Please note that once you authorize the employer to pull your background report, it can, while you are employed, use that authorization in the future without obtaining a new authorization.
Consideration of your background report for employment purposes.Often job applicants tell me that their job interview went great and that they were even given an oral or written offer of employment...pending the completion of a background report. Then days or weeks go by with no call or contact. It turns out that the employer obtained the background report and decided not to "move forward" with the applicant, moving on to another person for the job.
Job applicants should know that, "yes, an employer is allowed to consider and decline your employment based upon your background report," but before it does so, it must provide applicants with notices and rights BEFORE any final employment decision is made. Why? Because in a nation of more than 330,000,000 and thousands of public records databases, the reports sold to employers may be incorrect, incomplete or misleading.
Because of the sensitive nature of the reports and because the information may be erroneous or information which could be explained, an employer must first give the job applicant a copy of the report, a written copy of consumer rights (notices on how to contact the reporting agency and disputing reported data) as well as a meaningful opportunity (about 5 days) to dispute or address the contents of the report. This all must happen BEFORE an employer makes a final decision not to hire or to fire an employee based upon the report.
An employer that fails to provide these rights to job applicants or to existing employees, could be liable for lost wages or other financial damages.
What to do if your report is incorrect, incomplete or misleadingBecause an employer is to provide you with a copy of your report BEFORE it takes any adverse action (not hiring or firing), you should be able to see what is being reported. Once you receive a copy of your report, you should review it closely to check for inaccuracies. I have come across reports which have information belonging to other people (mixed reports), information about expunged or sealed criminal records, reports of charges but not reduced plea bargains, or multiple pages of reports about one charge. All of these can be considered inaccurate under the FCRA. When your report contains inaccurate data, you should immediately dispute the report, in writing, with the reporting agency that sold the report. If you have documentation which demonstrates that the report is inaccurate, you should include that in the dispute letter. You should inform the employer that you are disputing the information and that you request that it hold your employment position. The reporting agency has 30 days to investigate your dispute (it is only obligated to investigate the information you provide in your dispute - it is vital that the dispute is highly detailed and specific.) If the furnisher of the data cannot verify that the information is accurate or if it fails to respond within 30 days, the reporting agency must remove the offending information from your report.
Asserting Your RightsAs indicated, your rights, as it pertains to the use of background reports for employment purposes, are found under the Fair Credit Reporting Act. This is a federal statute which could be asserted in Federal Courts across the nation. If your report is incorrect, you may have a claim against the reporting agency for failing to maintain reasonable procedures to assure that its data is correct. And if the employer fails to give you a chance to review, dispute and address the report BEFORE it makes any final decision, it too may be subject to a claim under the FCRA.