Background Checks

Background Checks: What Employees Should Know About Their Legal Rights Under the FCRA

Anyone who has applied for a job in the past few years, particularly with a medium to large company, has almost certainly been the subject of a pre-employment background check – whether you realized it or not. Such checks are becoming standard operating procedure for employers, however, there are some very specific legal requirements that have been put in place to protect employees and regulate the screening process. Since the information obtained through these employment background checks can cause the loss of a job opportunity, job applicants should be aware of their rights under the Fair Credit Reporting Act (FCRA) and what to do if they suspect their rights have been violated.

The following is an overview of the basic legal requirements for employers who want to pull background, credit and/or investigative reports on job applicants:

Before a Report is Obtained:

  • Applicants must be provided with a clear and conspicuous Disclosure informing them that a consumer/background report may be obtained.
  • The Disclosure must be in writing.
  • The Disclosure must not be a part of the Employment Application (common violation)
  • The Disclosure must be a separate document, but may also contain the applicant’s Authorization – no other information or provisions may be included (such as waivers or disclaimers of liability).
  • After providing the required Disclosure to the applicant, obtain a signed Authorization

After a Report is Obtained:

  • If the consumer / background report contains information that will have a negative impact on the employer’s hiring decision, certain steps must be taken by the employer BEFORE a final decision is made.
  • The job applicant must be provided a copy of the report and a document informing them of their rights under the FCRA, including the right to dispute the negative information.
  • The employer must provide the applicant a reasonable opportunity to respond before making a final determination.
  • If a final decision is made to not hire, a second notice of adverse action must be sent to the applicant.

State Law Protections

Some states, such as California, Oklahoma and Minnesota have their own laws that provide additional protections and rights to job applicants – including the right to request a copy of the reports at the time the applicant gives the authorization to run a background check.

While the wage laws and regulations that employers must follow have been in place for years, many employers of all sizes (including some of the largest in the country) continue to get it wrong by routinely failing to provide all of the required information, providing information in an improper format and/or skipping certain important steps in the process. These failures violate the legal rights of workers and may end up costing an applicant a much needed job. It is therefore very important for job applicants to be aware of their rights and to take steps to protect them. Even if you were not denied a job, you may be entitled to recover statutory penalties for a violation of your rights.

If you have applied for a job in the past 2 years and have questions about whether your rights under the FCRA were violated, contact The Lore Law Firm for a free and confidential review.

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