Attention to detail makes a big difference when employers are required by law to do specific things.  The failure to meet all the requirements of a statute can result in litigation and potentially costly judgments.  One statute is particularly detailed and requires absolute attention to detail – the Fair Credit Reporting Act.  That law governs the procedures that must be followed when an employer wants to have an outside company perform a background check on a prospective employee.

A recent case reveals that scope of the problems that can arise if all the Is are not dotted and the Ts crossed.  An employer interviewed and then offered a job to an applicant.  The job offer was contingent upon the employee passing a background check.  But that is where the problems began.  In order to use the information in the background check, the employee has to be notified in writing and agree to the background check.  The notice has to be written clearly, conspicuously, and be provided in a document without other information.  Problem one, the applicant was not given a form to sign that was in compliance with these requirements.

A background check was done and a report issued by the vendor.  The report disclosed “non-conviction information,” which was then relied upon to revoke the job offer.  A human resources representative called the applicant to inform her that the job offer was revoked based on the background check.  The applicant was neither provided a copy of the report nor was she given a chance to explain the context of the disqualifying situation.   Problems two and three – the employee is entitled to receive a copy of the report that is used to rescind the job offer before the decision is finalized as well as a statement detailing the employee’s rights.  The statute also allows the applicant an opportunity to explain the circumstances of the disqualifying event.  While the explanation may not result in a different outcome, it remains a statutory right.

While the applicant may or may not be able to prove that she would have been hired had the requirements of the law been met, nonetheless, there was a statutory violation for which damages could be awarded just on the failure to follow the law’s requirements.

It is worth reviewing internal procedures to be sure that no “short-cuts” are taking place, that the proper forms are being used, and that anyone being rejected because of a background check be given a chance to explain the circumstances surrounding the disqualifying event.

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Photo of Gary S. Starr Gary S. Starr

Gary Starr provides practical advice to a wide range of clients in the private and public sector, bringing over 30 years of experience to counseling clients in traditional labor relations matters as well as human relations problems. His experience helps clients avoid the…

Gary Starr provides practical advice to a wide range of clients in the private and public sector, bringing over 30 years of experience to counseling clients in traditional labor relations matters as well as human relations problems. His experience helps clients avoid the “big mistakes” as well as the day-to-day hassles. Gary also defends employers in state and federal courts, regularly appearing before judges, juries, and administrative agencies. He provides strategic and creative approaches to difficult employee issues, seeking practical solutions and aggressively litigating where and when necessary.

Photo of Henry J. Zaccardi Henry J. Zaccardi

Henry Zaccardi represents public and private employers and non-profit organizations in all aspects of labor relations and employment law. This includes personnel policies and practices, Freedom of Information Act issues, wage and hour disputes, drug and alcohol testing, family and medical leave, equal…

Henry Zaccardi represents public and private employers and non-profit organizations in all aspects of labor relations and employment law. This includes personnel policies and practices, Freedom of Information Act issues, wage and hour disputes, drug and alcohol testing, family and medical leave, equal employment opportunity and affirmative action, occupational health and safety and related matters and regulatory compliance.