提供披露并获得同意：背景调查完成后，如果任何调查结果可能成为拒绝工作申请或解雇员工的理由，雇主必须通过称为不利行动前通知的通知告知申请人。保留信函和附件的副本，并记录发送日期。除不利行动前通知外，雇主或其聘请进行背景调查的公司还必须向每位候选人提供背景调查报告的副本以及 他或她在 FCRA 下的权利摘要。
提供不利行动通知：不利行动通知必须告知候选人他或她对决定提出异议的权利，并让他们有机会在收到通知后 60 天内随时获得背景调查报告的另一份副本。如果雇主将背景调查外包给外部公司，例如消费者报告机构 (CRA)，则通知必须说明雇佣决定是由雇主而非承包商做出的，并包括姓名、地址和电话号码的CRA。保留信件和附件的副本，并记录发送日期。
处理敏感文件： FCRA 要求雇主安全地处理背景调查结果。纸质副本必须被粉碎或焚烧，所有数字副本必须被不可挽回地擦除。
除了联邦规定外，雇主可能会受到州和地方公平机会或 旨在减少对前罪犯的雇用歧视的禁止法律规定的额外不利行动通知要求的约束。某些医疗保健和金融行业的工作禁止前罪犯工作，但联邦平等就业机会法以及州和地方法规禁止仅以过去的法律问题为由排除求职者。雇主必须遵守这些法律以及 FCRA，或者将他们的背景调查流程外包给第三方 等供应商，该供应商会跟踪所有相关的招聘法律并调整其流程以遵守这些法律。
大多数与 FCRA 相关的诉讼源于两个主要违规行为：未能提供合规的背景调查披露和授权表格；以及未能遵循不利行动程序。在过去的几年里，各种规模的雇主都受到了指控违反 FCRA 的集体诉讼的打击，而且这些诉讼可能会迅速增加。雇主可能会被迫为每次违规支付高达 1,000 美元的费用，在您考虑到大型雇主每月可能会处理数千份申请之前，这似乎并不多。Avis和Petco等大公司已经解决了与不利行动相关的失误导致的数百万美元诉讼。
仔细查看背景调查报告，以确保它准确地反映了您的历史记录。注意您在报告中发现的任何不准确之处，并收集您可能拥有的任何证据（法律文件、您可以用作澄清或更正错误的参考的人等）。如果雇主使用 第三方作为其背景调查提供者，您可以使用数字背景调查报告中提供的评论字段或使用 第三方 的在线争议工具（在我们的 候选人资源中心了解更多信息）直接提交此信息。否则，请联系雇主以确定是否以纸质版或电子邮件的形式提供信息。如果报告准确地解决了过去的刑事定罪或监禁，您应该直接解决这些问题：
尽管法律要求所有不利诉讼前通知都包含您在 FCRA 下的权利摘要，但提前熟悉这些权利并没有什么坏处，特别是如果您的历史包括参与刑事司法系统。 在这种情况下，您还应该意识到，根据旨在减少对前罪犯的雇用歧视的所谓 公平机会或禁止入内法，您可能拥有额外的权利。这些法律因地而异，因此请检查是否适用于您的司法管辖区。
When employers decide not to hire a job applicant due to information discovered in an employment background check, the law requires sending the candidate an adverse action notice.
In this article, learn what adverse action means, the steps employers must follow to comply with the law, and what candidates should do if they receive an adverse action letter from a potential employer.
When results of an employer background check prompt a decision to turn down an applicant or dismiss an employee, federal law requires furnishing that information to the candidate in a document known as an adverse action notice. This article addresses the responsibilities of employers delivering adverse action notices, and the rights of candidates who receive them.
“Adverse action” isn’t a term most of us hear every day, and if you’re familiar with it, odds are good you (like Google) associate it with credit scores: Federal law requires lenders to provide an adverse action notice anytime they use a credit score as the basis for turning down an application for a loan or credit card, or charging more than the best-available interest rate.
The same law that governs credit scores—the Fair Credit Reporting Act (FCRA)—applies to employer background checks, and the adverse action rules it imposes on employers are even more complicated than those placed on lenders. Employers who violate those rules face stiff financial penalties and could also open themselves up to unfair-hiring lawsuits.
Our goal in this article is to review the adverse action steps involved in the background check process, and to point out employer responsibilities as well as applicants’ rights.
The Rise of Employment Background Checks
Growing numbers of non-regulated companies, including small-to-midsize businesses, use employment background checks in an effort to pre-empt financial loss, avoid workplace accidents, mitigate liability, and protect company reputation. By providing insight into candidates’ work backgrounds and any history they may have of criminal conviction or incarceration, background checks let employers address potential new hires (or internal candidates for promotion) “with eyes open.” Background checks can ensure all relevant matters are brought to light during the hiring process, so that employer and candidate can address them head-on.
What is an adverse employment action?
Adverse action comes into play if information uncovered in an employment background check leads to a decision against hiring or promoting a job candidate (or dismissing a current employee).
What is an adverse action letter?
With respect to background checks, an adverse action letter is a written notice required by federal law, delivered in hard copy or electronic form, that informs a job candidate he or she will not be hired for a particular position because of the findings in a background check.
What are the correct steps for delivering an adverse action letter?
To comply with FCRA, employers must follow a strict set of rules when informing a candidate or employee about adverse action decisions related to background checks. But before the background check even begins, FCRA disclosure and authorization requirements specify strict procedures for notifying the candidate or employee, and securing written permission to conduct the check.
Provide disclosure and get consent: Once a background check is completed, if any of its findings may be grounds for declining a job application or dismissing an employee, the employer must let the applicant know via a notice called a pre-adverse action letter. (You can download a GoodHire pre-adverse action notice sample here.) Keep a copy of the letter and attachments, and document the date sent. Along with the pre-adverse action notice, the employer, or the company it has hired to conduct the background check, also must provide each candidate with a copy of the background check report and a summary of his or her rights under FCRA.
Send pre-adverse action notice: The employer must then give the candidate reasonable time to review the background check report, and allow them to address any information they consider inaccurate. The employer also must give the candidate a chance to offer clarifying information to correct the record or otherwise explain the report’s findings. No specific waiting period is specified under FCRA, but courts have accepted five days as a reasonable amount of time for this process.
Review results again: If, after considering the candidate’s response and any corrections to the record, the employer still decides against hiring or promoting the candidate based on the background check contents, the employer must issue an adverse action notice that explains their decision. The adverse action notice may be delivered in hard-copy form or electronically. (You can download a GoodHire adverse action letter sample here.)
Provide notice of adverse action: The adverse action notice must inform the candidate of his or her right to dispute the decision, and offer them a chance to get another copy of their background check report any time within 60 days of receiving the notice. If the employer outsourced the background check to an outside company, such as a Consumer Reporting Agency (CRA), the notice must specify that the hiring decision was made by the employer, not the contractor, and include the name, address, and phone number of the CRA. Keep a copy of the letter and attachments, and document the date sent.
Dispose of sensitive documents: The FCRA requires that the employer securely dispose of the background check results. Paper copies must be shredded or incinerated, and all digital copies must be irretrievably erased.
In addition to federal mandates, employers may be subject to additional adverse action notification requirements under state and local fair chance or ban-the-box laws designed to reduce hiring discrimination against ex-offenders. Certain healthcare and financial-industry jobs are off-limits to ex-offenders, but federal equal employment opportunity laws, as well as state and local regulations otherwise forbid excluding job candidates solely on grounds of past legal issues. Employers must obey these laws as well as FCRA, or outsource their background check process to a vendor such as GoodHire that tracks all relevant hiring laws and adapts its process to comply with them.
Adverse Action Compliance Violations
Most FCRA-related lawsuits arise from two primary violations: failure to provide compliant background check disclosure and authorization forms; and failure to follow the adverse action process. In the past few years, employers of all sizes have been hit with class-action lawsuits that allege FCRA violations, and these can add up quickly. Employers can be forced to pay up to $1,000 for each violation, which may not seem like much until you consider that large employers may process thousands of applications a month. Large corporations like Avis and Petco, among others, have settled multi-million dollar lawsuits stemming from adverse-action related missteps.
The adverse action process is a leading source of confusion for employers and HR pros alike. To help, GoodHire addresses additional employer questions in the blog, 8 Questions About the FCRA’s Adverse Action Requirements.
What do you do if you get a pre-adverse action letter?
If you receive a pre-adverse action notice after applying for a new job or promotion, you’ll likely be disappointed, and possibly depressed or even angry. That’s understandable, but it’s important not to let emotions get the best of you. A clock starts ticking as soon as you receive the notice, and if you act quickly, you may be able to address the employer’s concerns and stay in the running for the job.
Candidate Rights and Considerations
Review the background check report carefully to ensure it accurately represents your history. Note any inaccuracies you find in the report, and collect any evidence you may have (legal documents, people you can use as references to clarify or correct the errors, etc.). If the employer used GoodHire as its background check provider, you can submit this information directly by using the comment fields provided in your digital background check report, or by using GoodHire’s online dispute tool (learn more in our Candidate Resource Center). Otherwise, contact the employer to determine whether to deliver the information in the form of a hard copy or email.If the report accurately addresses past criminal convictions or imprisonment, you should address those issues directly:
Acknowledge your mistakes, and try to explain what you’ve learned from them and why they won’t prevent you from being effective at the job you’re seeking.
If you’ve received any training or otherwise learned relevant new skills, consider describing how you’d use them in the job under consideration.
If you’re comfortable doing so, consider adding a personal note (on lessons learned, steps you’re taking to avoid repeating past mistakes, etc.). It can’t hurt, and could reopen a conversation with the employer.
Although the law requires all pre-adverse action notices to include a summary of your rights under the FCRA, it can’t hurt to familiarize yourself with those rights ahead of time, particularly if your history includes involvement in the criminal justice system. In that case, you should also be aware that you may have additional rights under so-called fair chance or ban-the-box laws designed to reduce hiring discrimination against ex-offenders. These laws vary from one location to another, so check if any apply to your jurisdiction.
If your application is still turned down after you’ve responded to the pre-adverse action notice, review your rights to make sure you’ve been treated lawfully. If not, you can dispute the decision, but if the employer followed the law, even if you feel you weren’t treated fairly, do your best to accept the decision graciously. Let the employer know you hope they’ll consider you for future openings, and keep on looking.
For more information about the adverse action process generally, download our guide, What To Consider When You Decide Not To Hire, which includes a detailed adverse action checklist.