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You Might Not Always Have A Right to Dispute Negative Background Checks - What Job Applicants Should Know

A recent lawsuit raises questions and caveats to the FCRA rule that grants job applicants a right to dispute the accuracy of background checks before an employer rescinds a job offer.

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A unanimous three-judge panel ruled that although the Fair Credit Reporting Act (FCRA) gives job applicants the right to explain the accuracy and context of background checks, it does not grant them a right to dispute reported convictions before losing a job offer.

This means that, under certain conditions, employers are not required under federal law to grant job applicants with criminal records a chance to explain their background check before rescinding a job offer.

What is the Fair Credit Reporting Act?

Originally enacted in 1970, the Fair Credit Reporting Act was designed to give individuals a right to resolve any inaccuracies in their credit reports. In 1996, FCRA expanded to other reports, including background checks for employment. Under FCRA compliance, an employer must disclose that they are obtaining a background check, receive authorization and then comply with certain protocols if the employer is considering adverse action based on the consumer report.

What is an adverse action notice?

In compliance with the FCRA, if an employer is considering taking employment action in regard to background check results, they must follow a multi-step adverse action process.

They must notify the job applicant that adverse action is being considered, provide them a copy of the report and inform them that they may dispute or provide context for the criminal records. However, with the new rule, employers aren't necessarily required to provide this notice or offer an applicant a chance to dispute the records before making an employment decision.

Related: Have You Checked the Background of Your New Hire Yet?

Negative versus accurate claims

The court ruling comes in part because of a recent lawsuit wherein an applicant sued data-processing firm SC Data Center, stating it violated the FCRA by rescinding her job offer before providing a chance to discuss the background check results with the potential employer.

The applicant stated on the application that she had never been convicted of a felony, but "was once arrested in 1996 at age 17 and then found not guilty."

Here's where it gets tricky.

Although the employer technically violated FCRA compliance by not providing the applicant with the records before making the decision, the results of the background check found that her record — in relation to what she disclosed — was not only negative, but inaccurate to her original claim.

The background check revealed that she was convicted of murder and armed robbery in 1996, was sentenced to 25 years in prison, and was released after serving 12 years.

"The act doesn't give applicants the right to explain negative but accurate information in a consumer report before the employer can make an adverse employment decision," said Richard Millisor, a partner at the law firm Fisher Phillips.

Related: Do Your Homework on Yourself: Background Checks for Business

What does this mean for job applicants and potential employers?

Although the court in this case ruled in favor of the employer, despite its FCRA violation, the decision was contingent on the accuracy of the report, not the negative connotation. When the applicant sued the data firm, she did so on the basis that she was not granted the right to view her file and subsequent opportunity to dispute her report — but never argued against the accuracy of the conviction records. Therefore, the employer rescinded the offer due to felony convictions she failed to disclose.

In short: for applicants, be honest from the get-go. For employers, it is still wise to abide by consumer rights, as this one case is hinged on fine print, and technical violations to FCRA can lead to costly lawsuits.

"When a discrepancy arises in a situation involving your company, you shouldn't automatically assume that the results of the background investigation are correct or that the job candidate lied on the application. It's important not to jump to conclusions but instead follow the proper process outlined by the federal statute," Millisor says.

Related: How Should Businesses Conduct Background Checks In the Post-Pandemic World?

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