Multiple companies have come under fire for their background check processes. There are particular steps that the company must follow to stay compliant with federal law. Without knowing the obligations a company has to a job seeker, they are at a disadvantage to hold them accountable. As background checks become more commonplace, job seekers must be aware of the rights and the obligations employers must meet.
Background Check Process
Businesses must follow pre-adverse/adverse action guidelines set forth by the FCRA. Any company that requires pre-employment background screening must follow these guidelines under law or face legal repercussions. The first step is to ask for consent to request a background check. Usually during the interview process the employer will ask you to sign a form stating that you consent to a background check. Once they receive the background check the company must then notify you in writing that there may be an adverse action taken based on the results of the background check. Along with that written statement, they should send you a copy of your background check report. You have a small window of time to look through the report and dispute any false or missing information. Once that time period is over though, the company has the right to decide not to hire based on information in the report.
Company Requirements
The pre-adverse/adverse action rules give potential candidates the ability to dispute any false or missing information in their report that could negatively affect their candidacy for a position. The position being filled must correlate with the item on the report which they base their decision on. For example, if someone has an arrest record for a driving offence, they can be denied a job as a delivery person. Similarly, if someone has been arrested on charges of financial fraud, they could be denied a job at a bank or in any department dealing with business finances. These decisions can be made without legal repercussions as long as the company follows the pre-adverse/adverse action steps.
Legal Issues
Incorrect Report Information
If you feel the information on your background report is false or missing information, you have the right to dispute that information. To do so, contact the agency that provided the background check report to the employer. When the company sends the report to you, they should include the contact information for the screening company. If you decide to file a dispute, contact the employer immediately. The screening company notifies the employer, but it’s always a good idea for the applicant to do so as well.
Inappropriate Steps
If you find that the employer failed to follow the proper steps, you have the right to file a complaint. Amazon, Wells Fargo, and Target have all come under legal fire for obtaining pre-employment background checks without the consent of the candidate. According to a CBS report from October, the lead plaintiff in a case against Amazon states that the company based their decision to not hire based on the content of a background check report but the internet giant never provided a copy of the report for the plaintiff to refute. The FTC handles complaints and is the organization applicants should contact if rights have been violated.
Discrimination
Along with the adverse action steps, companies must also follow the Civil Rights Act of 1964 – Title VII. They cannot refuse to hire someone based on religion, gender, age, or race. Recently the Supreme Court heard cases to decide if sexual orientation falls under Title VII protections. As of now, the LGBTQ community doesn’t fall under these same protections and can be denied employment or lawfully fired. If you feel that you have been a victim of discrimination during the hiring process or because of the content of your background check report, consider contacting the EEOC to file a complaint.
The FTC and EEOC provide protections for potential hires, such as if a company doesn’t provide a copy of a background check, fails to obtain consent, or makes a decision to not hire without notice. Employers are held to follow the pre-adverse/adverse action guidelines and the Title VII discrimination laws. As a job candidate, you have the right to file a complaint and hold the company to a higher standard.
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At Critical Research, transparency is one of our fundamental beliefs. We’re here to help you make smart hiring decisions and get you from interview to orientation as quickly as possible, by offering comprehensive screening, reference checks, and verifications. Please contact us for more information on how we can help you achieve your hiring goals.