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Background Check Basics
Any background or credit check that is performed by a third party Consumer Reporting Agency (CRA) must be conducted in accordance with the Fair Credit Reporting Act (FCRA).
Before conducting a criminal background check through a CRA, an employer is legally required to first disclose to the applicant or employee that they will be conducting a background check on
them, and also get the applicant or employee's authorization to perform the check.
If the decision is made to not hire the applicant, or to not consider the employee for promotion or continued employment, based on the background information, this would be considered an "adverse employment action." It is considered illegal discrimination to take an adverse employment action based on an arrest or conviction record unless it is substantially related to the position the applicant or employee is being considered for.
Before
taking any adverse employment action it is necessary to provide the applicant or employee with a "Pre Adverse Action" notice consisting of a copy of the background check report, as well as a copy of the "A Summary of Your Rights Under the Fair Credit Reporting Act" notice. While not explicitly prescribed by the FCRA, court and Federal Trade Commission (FT
C) guidance suggests five days is a reasonable period to wait after sending the pre-adverse action notice before taking the adverse action.
After
an employer has taken the adverse action, the applicant or employee must be provided with an "Adverse Action" notice telling them about their rights to see the information being reported about them, and to correct any inaccurate information.
Click here for a link to the EEOC's website for additional information on background checks.
Disclaimer: The above is a basic overview of background checking procedures, and is not intended as legal advice. For more specific, detailed information, consult your legal counsel.
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