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Employer Background Check Compliance

A typical misconception is that compliance only affects the technical areas of background checks such as authorization and disclosure forms, employment application restrictions, and the timing of background check requests.  However, there are additional areas of compliance specific to employer practices. Below are some common questions InCheck receives concerning employer conduct during background check processing.

Can I Discuss a Background Check with the Candidate Before the Entire Background Check Is Completed?

InCheck recommends that you do not discuss the results of a pending background check with your candidate. Any discussion regarding what is reported on a candidate’s background check should wait until the entire background check is complete and the candidate has an opportunity to review a copy of their report. The candidate should have the opportunity to review their report prior to any discussion pertaining to the results.

If the employer discusses a portion of the background check prior to completion of the entire report, the candidate may end up filing multiple disputes. In this situation, the candidate could potentially dispute information discussed by the employer and subsequently file another dispute once they receive a copy of their report.  This can cause delays in the hiring process for both the employer and candidate.

Can I Make a Hiring Decision Before a Background Check is Completed?

No, you should review a completed report before you consider taking adverse action.  If you still plan to potentially take adverse action based in whole, or in part, on a completed background check, you must follow the two-part adverse action process as defined by the FCRA. This process allows the candidate the opportunity to dispute the information contained in their consumer report.  The dispute process is discussed in more detail below.

Can I Make a Hiring Decision Based on the Results of a Background Check While the Background Check is Being Disputed? 

Under the Fair Credit Reporting Act (FCRA), InCheck has thirty (30) days to reinvestigate any disputed information. While the FCRA does not state whether an employer may make a hiring decision during the reinvestigation period, doing so is not advised as it does not align with the spirit of the dispute process. During the course of the reinvestigation, InCheck may correct inaccuracies on a report. There’s potential risk that the information used to make the adverse hiring decision may be removed from the candidate’s report once the reinvestigation is complete. It is in the best interest of both the employer and the candidate to wait until after a dispute reinvestigation is complete for a hiring decision to be made.

Am I Permitted to Know Specifically What Information a Candidate Disputes?

It is InCheck’s policy to notify our clients of a dispute without sharing the specifics. When InCheck receives a dispute from your candidate, we will notify you that a dispute has been filed. Upon completion of a dispute, we will notify you that the reinvestigation is complete, whether or not the report was updated, and a copy of the updated report, if applicable.

Once a dispute is filed, the report is considered under review and, as mentioned above, best practice is to hold off on making a hiring decision until the reinvestigation is complete.

Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.