Q: Can an employer rescind a job offer on the basis that something might show on background report?
I had an interview with an insurance company which went extremely well, and I was immediately offered a position. I went back in to fill out paperwork, and I was asked if I had ever been convicted of a felony. I was honest and said yes. Eleven years ago I was convicted of class c possession. No time was served and I only had to serve 1.5 years out of 3 years probation because I did so well. It is my only problem (except a couple of speeding tickets from youth). They would not let me finish the application because of this. I had already researched laws for licensing, and the Commission can excuse this and let me become licensed. However, when I told them this, I was told there were state laws and also company rules. Can they stop me from even finishing the application because of this charge from 11 years ago might show up? I have been hired previously by 2 other companies with background checks, and nothing was ever said (I told them up front anyway. I have to be honest!).
A: An employer may use a background report to assist it in making employment decisions. HOWEVER, since background reports or background "checks" are considered consumer reports under the Federal Fair Credit Reporting Act (FCRA), employers must follow specific rules when not only using the reports but also obtaining the reports. These rules, generally are as follows:
1) The employer must obtain your written consent to pull your report. Your report contains sensitive data (credit history, employment history, and potentially criminal records.) Because of this, Congress required under the FCRA that employers first obtain your informed consent to receive your report; THEN
2) Once the employer gets the report, and it determines that it may use the report to deny employment (or fire an existing employee) it MUST first provide a copy of the report to the applicant or employee and provide that person with a meaningful opportunity to address or dispute the report. THis must happen BEFORE any final employment decision is made.
An employer that fails to follow these rules may be liable to pay lost wages or other financial damages for the violation of the law.
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