Employers Must Provide Negative Background Reports to Job Applicants Before Deciding not to Hire Them

The Fair Credit Reporting Act regulates employers who use background reports in the hiring process. Whenever a background report has negative information, the employer is required to send a copy to the applicant and given him or her a reasonable opportunity to comment or explain the contents of the report. For example, a background report may state the applicant was convicted of a felony when in fact the conviction was a misdemeanor. Or the report may have mixed the criminal history of a another person other than the applicant. In such cases, the applicant should be given the opportunity point out the others to the employer and the background check company. Upon such notice, the background check company is required to correct any errors.

The companies that perform background checks for employers are also regulated by the FCRA. Their reports must meet the standard of maximum possible accuracy.

Employers that fail to give applicants a reasonable chance to comment or explain a negative report may be liable for the applicant’s lost wages and his or her emotional distress.  The background check companies may also be liable for damages.

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