Regardless of whether your search has been slogging on for months or you found success right out of the gate, being offered a new job is often both satisfying and a huge relief. Searching job sites and tweaking your resume can wear you down, and waiting to hear back after an interview serves to crank your anxiety into overdrive. Getting hired can mean a new lease on life, but having that coveted job offer rescinded over something that turned up on a background check is devastating.
If that isn’t bad enough, what if it happens because the background check company’s report is filled with inaccuracies or outdated information? As a potential employee, you have certain rights and protections under both state and federal laws when it comes to background check reports, including the right to dispute errors, mix-ups, and inaccurate information. Understanding these rights and how to properly seek a remedy can be the difference between getting the job you deserve and finding yourself on the outside looking in. Let’s take a look at how to deal with background check errors.
How Background Checks Work
Given that over 90% of employers reportedly conduct background checks on prospective employees, there’s an extremely high likelihood that your past will come under scrutiny if you’re a job applicant being seriously considered for a position. Since employers are often responsible for the actions of their employees while performing in the company’s name, it’s understandable that they’d wish to know as much as possible about a person they might add to their team.
The type of background checks a company requests from reporting agencies will depend on the position to be filled. These can include, but aren’t limited to, the following:
- Employment history: You’ll likely have supplied your employment history on your resume. It’s common practice for a potential employer to use a background check to confirm both where you worked and for how long.
- Education: Lying about where one attended and/or graduated from college can make a resume seem more impressive, but getting caught will have repercussions beyond having the offer rescinded. In our age of social media, remember that the internet is forever.
- Criminal history: Criminal background checks for potential employees are fairly common. Whether it keeps you from being hired depends on a number of factors that include the type and severity of your offense, whether you were convicted, and the industry you’re seeking employment in. Where you’re applying for work and who it’s for will be affected by state laws, which vary. Some states have adopted “Ban the Box” laws, which prohibit employers from asking about criminal records until later in the hiring process. Federal positions are protected by the Fair Chance To Compete for Jobs Act of 2019, which only allows employers at federal agencies, federal contractors, and federal subcontractors to request criminal past information from applicants after a conditional offer of employment is made (unless the position is with law enforcement or has national security concerns).
- Driving Records: Requests for background checks on an applicant’s driving record are commonplace in certain industries. If you’re applying to be a long-haul trucker, it makes sense for a company to examine your driving history. If the job is for an accounting position, your driving record isn’t pertinent.
- Drug tests: Requesting a background check for failed drug tests is heavily influenced by both the industry the position is part of and state drug laws. The drug laws vary between jurisdictions, with what’s legal in one state instead vigorously prosecuted in others.
Checks on financial credit history or medical histories are far less common, and in many cases, access or use of this information is restricted by federal laws such as the Fair Credit Reporting Act (FCRA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).
How a Background Check May Happen
The private information you share during the application and interview process is your choice; the FCRA provides significant protections for applicants. Despite the name, the FCRA applies to consumer reporting agencies and to many third-party background checks conducted on current or prospective employees. It requires that the subject of the background check receive a clear written disclosure that a background report may be obtained and that the employer obtain the applicant’s written authorization before ordering the report.
If an employer later takes an adverse action based on the report, the FCRA also requires that the employer provide certain notices and information to the applicant, including a copy of the report and a summary of the applicant’s rights. In addition, further protection may be provided through Equal Employment Opportunity Commission (EEOC) guidelines, state hiring laws, and Ban the Box laws.
Not all employee background hiring check policies are the same, but most follow a similar framework. If a red flag is raised, the employer will alert the applicant to the issue and issue a pre-adverse action notice, which is a legal protection required by the FCRA. They must give the applicant a reasonable time to respond to the allegations, which may be dictated by state or local law. If you don’t successfully explain what the report revealed or successfully challenge the allegedly incorrect information, the employer can make an informed hiring decision on whether or not to terminate the hiring process. If they choose to decline, they must supply an adverse action notice detailing the reason(s) why.
What To Do if You Fail a Background Check
There are numerous ways you can fail a background check without it being your fault. A reporting agency may have found court records of an offense you were convicted of or pleaded to, but missed that it had later been expunged. The background check may have pulled up records of someone with a similar name by mistake. Discrepancies like this can be frustrating, but you’ll have the opportunity to address the mistakes and provide the correct information.
When you receive the copy of your report, it will include information about the reporting agency that conducted the check. If it doesn’t, the employer must provide the name, address, and phone number of the check company. All background reporting agencies are required to have a dispute process, such as a “File a Dispute” link on the agency’s website.
This is your opportunity to contest or correct incorrect information contained in your background check. Be sure to include any supporting documents you may have, and alert your potential employer about the filing of your appeal. The background check agencies are required to investigate any claims of disputed information. Don’t be afraid to follow up if you feel like they’re dragging their feet.
If the background agency reports that it has revised the report, review it and confirm it’s correct now. If so, ask the reporting agency to send a copy to the company you’re interviewing with. Let the person you’re in contact with know that the revised report is on its way.
It’s possible that your background check will uncover matters of public record that are correct but threaten your future employment anyway. This can include incendiary posts on social media, text messages, and other media. If this is the case, it may fall on you to explain your words or provide context that satisfies the employer. First Amendment rights do not provide blanket coverage when a private employer is involved.
Losing a dream job over a youthful indiscretion or a foolhardy choice can be devastating. If you’re feeling overwhelmed, in over your head, or worried that you’re not explaining yourself well, consider getting professional legal assistance before your opportunity slips away.
Related Resources
- Learn the Basics About Hiring (FindLaw’s Law and Daily Life)
- Strategic Ways To Prepare for an Interview (FindLaw’s Practice of Law)
- Background Check Info: What Info Can Employers Use? (FindLaw’s Hiring Process Laws and Rights)
