How to Prepare for an Employment Background Check

When preparing yourself for a job interview, you need to do more than just freshen up on your interviewing skills.  Most employers today want to do more than just speak with you in an interview or read your resume.  They want to conduct a thorough background check and take a look into your credit report and history.  Reviewing your report prior to the interview to make sure it is in tip top shape is the first way to secure the job but knowing your rights under the Fair Credit Reporting Act (“FCRA”) will ensure the employer does not violate your rights and take advantage of your naiveté.    

For the most part, employers conduct background checks to find out information that may not be discussed during an interview. The information an employer is looking for usually depends on the type of job you are seeking.  For example, is you are looking for a job in the financial sector, most employers want to know what kind of financial position you are in, i.e. are you paying your bills on time, do you have a significant amount of debt, have you ever been convicted of a crime.  If you are looking for a job as a driver, most employers want to know your driving record; and if you are looking for a job working with children most, employers want to know that you do not have a criminal record.     

When agreeing to submit to a background check, not all of your information can be reviewed.  The FCRA sets clear guidelines on what information can be disclosed and this may depend on the type of job you are interviewing for.  For several jobs, your state may have laws that requires the employer to conduct a background check prior to hiring you.  Information that the employer is allowed to review may include your credit report, including any judgments or bankruptcies filed, mortgages, tax liens, employment history, social security number, criminal records, driving records, etc.  

While an employer is allowed to review prior convictions, a probation or arrest record, there are limits to what the employer is allowed see.  Under the FCRA, an employer is prohibited from reviewing outdated information including a bankruptcy filing after 10 years from the date of discharge, civil suits, arrest records, paid tax liens and negative account information after seven years and arrest records that have been expunged.  However, when applying for a job with an annual salary in excess of $75,000, this information is accessible to an employer.  Similarly, the FCRA does not prohibit an employer from asking information during an interview or job application.   

When it comes to conducting an Employment Background check, most employers often hire a third party to do the investigating on their behalf.  The third party can be an individual, or “private investigator”, or a company that does nothing but conduct employment screenings.  Regardless of who is conducting the search, your rights do not change.  The FCRA requires four steps during the background check, that if violated may entitle you to recovery under the statute.  First, prior to conducting a background check, the employer must notify you in writing that it plans to delve into your records.  Second, the employer must receive your written consent prior to accessing your information.  Third, based on the information found, if the employer plans to use any information adversely, the employer must provide you with a “pre-adverse action disclosure”.  This disclosure must explain that the employer may deny you employment based on information in your credit report or background screening.  The disclosure must inclue a copy of the report and an explanation of your rights under the FCRA and that you may dispute the information if it is inaccurate or incomplete.  Fourth, if the employer takes adverse action against you it must provide you with a written notice.  The adverse action letter must provide you with the name and address of the background check company and a statement that the company did not make the decision but the employer did.  Furthermore, the letter must explain that you have the right to dispute any information on your credit report.  

If you believe your rights have been violated under the FCRA and would like the advice or assistance of counsel, contact SmithMarco P.C. for a completely free case review.