How to Lawfully Reject a Candidate After a Negative Employment Criminal Background Check 24 Oct 2017


Definition of Employment Criminal Background Check: A background check is a review of a person’s commercial, criminal, and financial records. Background checks are very common. In fact, research shows that up to 70 percent of employers require employees to undergo background checks before hiring.

You reviewed lots of applications, interviewed rounds of candidates, and found one you really think could thrive in the position. You’re excited to expand your team’s talents until you receive the results from your employment criminal background check. There’s something unexpected and you no longer desire to hire this person.

The search continues, but not before you take the appropriate steps to alert the applicant of your decision. An FCRA-compliant background check requires multiple steps when informing candidates that something on their report is negatively impacting your hiring decision.

For example, you are hiring a commercial truck driver. The applicant told you they do not have any major traffic violations, misdemeanors, or felonies. You run the employment criminal background check and discover a DWI record just last year. Eventually, you decide this is not the right candidate for the position.

Because you used information on the background report to make your decision, you must now take specific steps to ensure you abide by the Fair Credit Reporting Act.

Employment Criminal Background Check

Step 1: Pre-Adverse Action Communication

You must first provide a pre-adverse action letter to the employer before notifying them of your decision. Included in this letter is:

• A copy of the background check report.

• A statement of FCRA rights called “A Summary of Your Rights under the Fair Credit Reporting Act.”

Step 2: Provide Reasonable Time to Respond

Employment Criminal Background Check

The reason for providing this time is so applicants can respond after seeing their background report. Maybe there’s more to the story than meets the eye and they want you to know the specifics. This is their opportunity to provide an explanation. The FCRA requires a waiting period after the first letter has been delivered, but does not specify a length, rather noting it should be “reasonable.” Industry experts typically recommend playing it safe by waiting at least five business days.

Step 3: Final Adverse-Action Notification

After a reasonable amount of time has passed and you haven’t received a response, you can move forward with the final adverse-action communication. This informs the applicant of your decision not to hire him or her based on the employment criminal background check information. In this final step you must provide:

• A letter informing the applicant of the action you are taking based on information found on the report. Be clear and concise in this copy. Keep in mind, some cities require you to share specifically what caused the decision and other locations do not.

• Provide a second copy of the “Summary of Your Rights Under the FCRA.”

• Provide the name, address, and phone number of the background reporting agency where you purchased the report. Note that they have 60 days to obtain a free copy of their report directly from the agency and/or correct any mistakes that they believe have been made on the report.

• Include a statement that the background reporting agency was not part of the decision to take adverse action and is unable to provide specific reasons for the action.

If at any time during this process you have questions or need assistance, work with your Trusted Employees account manager who has access to the most recent laws and legislation you need to follow to ensure you stay compliant. You’ll get the answers in no time and our professionals will help you go through this whole process smoothly!