Fired Because of a Background Check? Not Hired Because of a Background Check?
Do a simple Google search for your name and you may be surprised to discover how much of your personal information is publicly available. Many websites sell even more detailed information for a small fee to anyone in the world. Employers regularly run background checks on job applicants and even existing employees. These background checks may include information on your work history, credit score, marital status, criminal history, lawsuits—and even your age, race, or ethnicity. Background checks may affect your ability to get hired on a job or receive promotions and pay raises.
In some cases employees are fired because of information revealed in background checks. Unfortunately, much of the information in your background report may be inaccurate, incomplete, or out-of-date. Worse still, this information can permanently tarnish your reputation and employability. For example, the Federal Trade Commission (FTC) recently sued two companies that provide background screening reports to hundreds of employers nationwide for erroneously identifying “possible matches” with convicted sex offenders. Read the complaint here. Some employers may be secretly using background checks to discriminate on the basis of race, age, sex, and other protected characteristics. See “Background Checks: What Job Applicants and Employees Should Know,” published by the FTC.
Because of the damage a background check can do, employers must comply with a number of legal requirements before obtaining a report on employees and applicants—and before taking adverse employment actions.
Pre-Authorization Notice: Before an employer conducts a background check, it must clearly tell you that it intends to do so. The notice must appear separately from other documents you get—like an employment application—and should not contain any information other than the employer’s intention of running a background check. Employers often fail to comply with this requirement. Instead they embed the notice in a document containing other information, such as a liability release, which causes employees and applicants to overlook it.
Adverse-Action Notices: An employer must also give you a notice of your rights before and after taking an adverse action against you. An adverse action occurs, for example, when an employer denies your application for employment or promotion or fires you based on a background check. Before the employer can obtain a background report for the purpose of taking an adverse action it must provide you with a copy of your background report and a document titled “A Summary of Your Rights under the Fair Credit Reporting Act,” which is published by the FTC. If the employer does take an adverse action against you, it must provide you with an additional notice which includes the contact information of the company that provided the background report and your right to dispute the accuracy of the information contained in your report.
The notice must also advise you of your right to obtain an additional free report within 60 days.
If an employer does not comply with these notice requirements, you have options. The Fair Credit Reporting Act (FCRA) allows people to sue employers for actual damages or statutory damages of up to $1,000, among other remedies. A number of large employers—including Whole Foods, Swift Transportation, O’Reilly Auto Parts, Domino’s Pizza, and CVS—have recently been hit with class-action lawsuits for failing to comply with these requirements. In some cases the employers have settled for millions of dollars. Don’t be shut out of earning a living because of information contained in an undisclosed background report. Take control!
Useful Links
Background Checks: What Employers Need to Know, FTC Consumer Information
Background Checks: What Every Job Applicant and Employee Should Know, CounselOne, PC
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