You have spent weeks interviewing several candidates and have finally narrowed your search to a single person. To your disappointment the background check reveals that the candidate has lied about an arrest record, or has not earned the degree claimed on their application and/or resume. What happens now?
As an employer, if you are considering not hiring, promoting or retaining the applicant/employee based on adverse findings of a background check, you must inform the applicant/employee of the possible adverse action to be taken. First, the employer must provide the applicant with a copy of his/her background report and a copy of "A Summary of Your Rights under the Fair Credit Reporting Act" notice before the desired adverse action is taken.
The purpose of the pre-adverse action letter is to allow the applicant/employee to respond to any negative findings on the background report.
Perhaps you have discussed the negative information found as a result of the background check with the applicant/employee and they deny, for example, that they were ever convicted of a crime. On some occasions, further investigation is necessary. Perhaps the criminal record information from the state was not correct. Or, perhaps an error was made by a University or clearinghouse, and the applicant did earn a degree. Regardless of the circumstances, we will support you and provide necessary documentation. In general, most findings are correct, but many public records are still maintained manually and errors do occur.
If the employee/applicant is ultimately denied employment or a promotion, based in whole or in part on information contained in the background report, they must be given written notice of adverse action. The adverse action letter does need not include the specific reason for the adverse action, but must:
The Federal Trade Commission has opined that a background screening company may fulfill the employer's adverse action notification duties and send adverse action notices on behalf the employer. The employer, however, remains responsible for any duties imposed by the Fair Credit Reporting Act and may be subject to liability if the duties are not performed by the background check company.