Q: We received a background check on a candidate that showed a recent conviction for violent crime. Do we have to tell him that the background check report is why we are rescinding his offer of employment?
A: Yes. When conducting a post-offer background check on a job candidate, employers must follow the Fair Credit Reporting Act (“FCRA”) requirements. The FCRA requires that an individual first sign a disclosure and authorization acknowledging that they understand their background check will be obtained for purposes of obtaining employment. If the employer intends to revoke the candidate’s offer due to the content of the background check, the FCRA requires the employer to do the following:
- Give notice in advance (pre-adverse employment action letter) that employment may be declined because of information in the background report, in order to give a “reasonable time” (generally 3-5 days) for the candidate to dispute the information in report. The notice must include a copy of the report and a summary of rights under FCRA.
- Send the candidate a notice of adverse action (i.e. revocation of offer), which must include (a) the name, address and telephone number of the consumer reporting agency, including toll-free number, that provided the report, (b) a statement that the consumer reporting agency did not make the decision and is not able to explain why the decision was made, (c) a statement setting forth consumer’s right to obtain a free disclosure of the consumer’s file from the consumer reporting agency if they make a request within 60 days, and (d) a statement setting forth the consumer’s right to dispute directly with the consumer reporting agency the accuracy or completeness of any information provided by the consumer reporting agency.