Know Your Rights
If an employer uses a background investigation company to conduct a background check on you, the employer must:
If you are denied employment, the employer must:
You have certain rights by law during the background investigation process.
Background investigations come under the auspices of the Fair Credit Reporting Act (FCRA). Like most people, you are probably wondering why any law that includes the words "Fair Credit Reporting" would have anything to do with the employment process.
The FCRA is an all-encompassing law that provides protection for individuals on whom investigations are conducted or information is obtained through third parties that could result in a negative impact on the individual. If an employer conducts the background investigation through a third-party, they must provide a copy of "A Summary of Your Rights Under the FCRA".
A copy of this document is available at the following link: http://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf.
You may have additional rights under state or local law where you live.
If you view the "Summary of Your Rights Under the FCRA" you will notice that it can be a little confusing at first. This document applies to multiple purposes including individuals who apply for credit and insurance in addition to applying for employment. We will provide helpful hints regarding terminology used in this Act. A "consumer" is a person who applies for employment, credit or insurance. A "consumer report" is the background investigation conducted on you. A "consumer reporting agency" is the background investigation company. Information contained in the "Summary of Your Rights Under the FCRA" relating to credit scores and pre-screened offers of credit and insurance are not relevant to the employment application process. However, the basic rights outlined in this document apply to the employment background investigation process.
The employer must notify you if you are denied a position based in whole or in part due to information contained in a background investigation.
The employer must provide written or verbal communication to you that you were denied a position and the employer must provide to you a copy of the background investigation that was conducted. The employer must provide an opportunity for you dispute information contained in the background investigation that you believe is incorrect or misleading. The background investigation company is required by law to re-investigate without charge any aspect of the background investigation that you dispute. You must be given the opportunity to provide documentation that proves information contained in the report is inaccurate. The following is vitally important and is unknown to most applicants.
If you believe the background investigation is inaccurate, you must notify the potential employer that you wish to dispute the information contained in the report and the employer must hold the position open while the information is disputed. The background investigation company must re-investigate any information that is disputed in the report and update the background investigation with any new information that is developed. The results of the reinvestigation must be reported to the potential employer.
The background investigation process is flawed in that it is subject to human error. The individual who is contacted to verify your past employment at your old job may provide incorrect information. Another common problem is that your former employer may not have the correct dates of employment or your correct title. The high school or college where you attended may not be able to find your records. Background investigations are often outsourced overseas and individuals conducting the research may have difficulty finding your employer or school. Criminal records at the county and state level on occasion will not include or have incorrect personal identifiers (date of birth or Social Security number). Applicants for employment are frequently associated with someone with the same name and similar date of birth as someone with a criminal record that will result in denial of an employment opportunity. A Google search of the phrase "background check errors" will provide the scope of the problem. If you do not understand the background investigation process and your rights, you may be the next victim.
This website was created to provide information to those looking for work so that you understand your rights, understand how errors can occur that will affect your ability to obtain employment and how you can take matters into your own hands and get the job you want. Throughout this site there will be numerous suggestions and procedures you can take so that the background investigation process does not affect your future. The process an employer must follow includes what is called a pre-adverse action letter. This letter notifies you that the background investigation developed information that the employer believes may result in the denial of an employment opportunity or the rescinding of a job offer. It is vitally important that if you receive a pre-adverse action letter, you review the background investigation that is included with the letter to determine if there are any errors in this report. The employer will provide a certain number of days, usually between five and ten days for you to respond if you disagree with the information contained in the background investigation. You must notify the employer in writing that you disagree with the findings in the background investigation and that you wish to dispute the information contained within. This letter must be returned to the employer within the time frame they have given or else you will lose your rights to dispute the information contained in the report. If the employer does not hear from you within the five to ten day period of time mandated by the employer. The employer will send what is called an adverse action letter stating that they are denying you an employment opportunity or rescinding a job offer. We cannot emphasize the importance of this process. You must be aware of the pre-adverse and adverse action letter process to protect your rights during the employment process.
Most professional recruiters are familiar with the FCRA and follow the requirements of this law. However, many recruiters are either unfamiliar with the FCRA and they do not bother or do not have the time to follow the requirements. Applying for a job is a harrowing experience. You are anxious, hopeful, and you may feel as though the process is out of your control. Often, little time is spent by an employer explaining their employment process, your rights under the law and what will happen during the application process. We are here to help you understand what goes on behind the curtain that is the employment application process.
You have a right to a free copy of the background investigation conducted on you whether or not you were denied employment. The background investigation company must submit a copy of the report to you upon your written request. Obtain a copy of all documents that you sign during the employment application process including your authorization and the contact information of the background investigation company. You will need this information to obtain a copy of your background investigation.
While many professional Human Resources Professionals follow these guidelines, not every employer will. Incorrect information contained in a background investigation can cost you a job. Misinformation can be developed repeatedly and reported on you without your knowledge every time you apply for a job unless you know how to take matters into your own hands.
Know your rights, obtain a copy of your background investigation and dispute any information contained within that is inaccurate. It is up to you to understand the process, learn what goes on behind the scenes and protect your rights. Once you find inaccurate information you can contact the employer, school or court to correct the information.
Even better, contact your employers and schools in advance of a background investigation and confirm their records contain accurate information.
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This content should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship. For advice, please contact an attorney.