What rules must an employer follow if they decide not to hire me based on my record?

Under, federal law (FCRA) the employer must notify you both before AND after taking any adverse (negative) action against you based on the results of your background check.[1901]

BEFORE ADVERSE ACTION:

Before an employer takes any adverse action against you based on the results of your background check, the employer must give you a “Pre-Adverse Action” letter to notify you that it is planning to take the adverse action.[1902]

Under federal law, the Pre-Adverse Action letter must:

    NOTIFY you that the employer plans to take adverse action against you based on information from your background check report;
    Include a COPY of your background check report that the employer used to make its decision,[1903] and
    Include the DOCUMENT, “A Summary of Your Rights Under FCRA”[1904] (see Appendix I, PG. 632)

After you receive this letter, you must be given a reasonable opportunity (about 5 days)[1905] to review your report, respond to it, and correct any errors.

IMPORTANT: If you receive a “Pre-Adverse Action” letter, it is recommended that you:

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    Review your background check report immediately to make sure it does not contain any incomplete, inaccurate or outdated information—such as convictions that are more than 7 years old; convictions that were dismissed/expunged/sealed; and/or arrests that did not lead to a conviction (as long as the charges are not still pending); Tell the employer immediately if there is any incomplete, inaccurate, or outdated information in the report;Offer proof of errors in your background check report, such as court records showing the final disposition (outcome) of the case;Offer proof of your rehabilitation efforts, including certifications or documents that show completion of programs, school transcripts, letters of support from past employer or other community members (not family or friends).

If the employer does not give you enough time to review the report and correct any errors—for example, if the employer gives you the “Pre-Adverse Action” letter and then rejects your job application on the same day—you may have a legal claim against the employer for violating your right to receive notice before the adverse action.[1906]Although the purpose of the Pre-Adverse Action law is to allow you to correct errors in your background check report, the law is NOT clear about whether the employer is required to reconsider your application if you correct the error and provide proof. If this happens to you, you should talk to an attorney about whether the employer may have violated your rights.[1907]

AFTER ADVERSE ACTION

After an employer takes any adverse action against you, such as rejecting your job application or firing you, the employer must give you an “Adverse Action Notice” to notify you that an adverse action was taken against you based on information from your background check. The employer can give you this notice orally, in writing, or electronically, but it must be within 3 business days of the employer’s final decision.

Under federal law, the Adverse Action Notice must include:

    The name, address, and phone number of the background check company that supplied the report to the employer;
    A statement that the background check company that supplied the report is not responsible for the adverse action and cannot explain the specific reasons for the action; and
    A statement of your rights to:
    Dispute (challenge) the accuracy or completeness of any information the background check company provided; and
    Get an additional free report from the company within 60 days, if you ask for one.[1908]

The Adverse Action Notice is important so that you know why the employer made the adverse decision against you and what information the employer considered. This way you can challenge or correct any information that is incorrect, incomplete, or illegal. And if the employer or background check company has NOT followed any of the laws described here—or if the employer does NOT give you an Adverse Action Notice—you may have a legal claim against them.

IMPORTANT INFORMATION ABOUT ADVERSE ACTION NOTICES: If an employer takes an adverse action against you (such as not hiring you) based on information in your background check report, they must give you BOTH a Pre-Adverse Action AND Adverse Action Notice.

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If the employer does not give you these documents, you may have a legal claim against them for violating your rights under background check laws. However, you will need to show that they employer’s decision was actually based on information in your background check report (such as your criminal record) and NOT for other reasons. See the text box on PG. 577 for how to do this.

For more information on what you can do if an employer does NOT give you an Adverse Action Notice or does NOT follow any of the other laws described here, see PG. 576.

For more information on how to challenge or correct information in your background check report, see information below, or see the UNDERSTANDING & CLEANING UP YOUR RECORD CHAPTER, PG. 931.

HELPFUL HINTIf I did not receive a Pre-Adverse Action or Adverse Action Notice, how can I show that the employer rejected me based on my background check and NOT other reasons?

Here are 2 strategies that have been used for showing that the employer may have rejected you based on your background check, even if they did NOT give you a Pre-Adverse Action or Adverse Action Notice:

Did the employer give you a Notice saying they would run a background check, or have you sign a document giving them permission to run a background check? Did the employer give you a Pre-Adverse Action Notice but NOT Adverse Action Notice (or the opposite—an Adverse Action Notice but NOT Pre-Adverse Action Notice)? Did the employer say anything about your record, or about (not) hiring people with criminal records? Is the information in your criminal record completely unrelated to the duties of the position? Any of these can help show the employer may have illegally rejected your application based on information in your background check.If you feel comfortable, you can try talking to the employer directly. You can explain that you are trying to improve your application for the future, and then ask why the employer did not select your application and what you can do to improve your chances in the future.In some cases, the employer may say something that reveals he/she made a decision based on your record or other information in your background check—for example, a negative comment about your being trustworthy, creating a risk to others, or about people with criminal records, in general. If this happens, make sure that you write down afterward exactly what the employer said!In other cases, the employer may actually give you a helpful explanation that really can help you to improve your job applications in the future. This may show that the employer really did have some other reason for not hiring you, or at the very least can give you help you to be more successful for future jobs.Finally, the employer may not give you any explanation for their decision, or may simply say that other people were more qualified or applied before you. In this case, it may be difficult to show that the employer actually rejected you based on your background check report.
  1. 1901

    15 U.S.C. § 1681b(b)(3)(A). ↑

  2. 1902

    15 U.S.C. § 1681b(b)(3)(A); see also Russ Dempsey, Adverse Action in Employment, http://www.backgroundbureau.com/web/Articles/FCRA.shtml. ↑

  3. 1903

    Note: This means that the employer must give you a copy of your background check report, even if you did not check the box to request a copy of the report when giving permission to run the background check. ↑

  4. 1904

    15 U.S.C. § 1681b(b)(3)(A). A copy of “A Summary of Your Rights Under FCRA” can be found in Appendix I, PG. 684, or online at www.ftc.gov/credit. ↑

  5. 1905

    Although the law does not provide exactly how much time an employer must wait after sending a “Pre-Adverse Action” letter to take the adverse action, guidance from Congress suggests that 5 business days is a reasonable amount of time. See H.R. Rep. No. 103-486, at 30 (1994). ↑

  6. 1906

    See, e.g., Beverly v. Wal-Mart Stores, Inc., No. CIV. A. 3:07CV469, 2008 WL 149032, at *3 (2008); Williams v. Telespectrum, Inc., No. 3:05CV853, 2006 WL 7067107, at *4 (2006) (unreported); but see Johnson v. ADP Screening & Selection Svcs., Inc., 768 F. Supp. 2d 979, 983-84 (2011) (FRCA does not impose waiting period on employer nor require employer to hold position open for applicant during period between Pre-Adverse Action letter and adverse action). ↑

  7. 1907

    Compare, e.g., Beverly v. Wal-Mart Stores, Inc., No. CIV.A. 3:07CV469, 2008 WL 149032, at *3 (2008) (“The statutory purpose is to enable employee or applicant to correct any of inaccurate information in background report before any adverse decision or action is taken.”); with Johnson v. ADP Screening & Selection Servs., Inc., 768 F. Supp. 2d 979, 984 (2011) (“Nothing in the FCRA requires an employer to consider any correction that a Background check company might make.”) ↑

  8. 1908

    15 U.S.C. § 1681m(b)(1); Cal. Civ. Code § 1786.40. ↑