Ask Angela: Background Checks and the Candidate Experience

Angela Preston

Candidate Experience

This month, we are looking at things from the job applicant’s point of view. I’m answering a question from Quentin, a job candidate who was rejected for employment by Big Kahuna Burger (BKB). Based on Quentin’s version of the facts, his question reads a lot like what NOT to do for a positive candidate experience. Of course, the names have been changed to protect the innocent.

Dear Angela,

I started a job with BKB yesterday, prior to the company receiving my background check. I received a phone call today from a “counter girl” at BKB, and she told me that she was told to call me, to tell me I didn’t pass my background check.

I asked her what was on it and she said “I’m not sure because I don’t have the report in front of me, but something about theft and domestic violence.”

First of all, I was never convicted of theft, and am in a legal battle right now over a false arrest, where I was the one assaulted. I haven’t committed assault or been convicted. Can the BKB hold this against me, even though, I’m falsely accused and haven’t been convicted?

Can they share this information with other employees?

Also. I didn’t sign a waiver or give them permission to conduct a background check.

I did fill out a job application and was wondering if they did have a clause by my signature, is this enough to mean I gave them permission?

–Quentin

Yikes. Quentin’s question is loaded. I mean, I couldn’t make this up if I tried. It’s all Background Screening 101, but some companies are still getting this stuff wrong.

Let’s start at the beginning. Quentin says he got a call telling him he did not pass his background check. It sounds like Quentin’s employment was contingent on passing the background check. No problem there—contingent offers are fine. So far so good.

But the minute the background check is complete, things appear to go south for BKB. If something in the background check disqualified Quentin from working at BKB, the company is required to follow a two-step Adverse Action Notification process. The first step is sending Quentin a pre-adverse notice in writing that includes a copy of his report and a “Summary of Rights” under the Fair Credit Reporting Act (FCRA). All of this is supposed to happen BEFORE making a final decision. The second step is another letter, advising Quentin of the final decision not to hire, and giving him information on where and how to dispute the report.

I can’t tell from Quentin’s question whether he ever received any written notices, but it doesn’t sound like it. If notices were never sent, BKB has a problem. The whole point of the adverse action process is to give the job applicant a chance to dispute the report. In Quentin’s case, he claims that the report is wrong. He also raises a legitimate issue as to whether a “false” arrest can be held against him. But it sounds like a final decision has been made and he has not been given a chance to tell his side of the story. Not good. Moreover—getting a call from a “counter girl” (Quentin’s terminology–not mine) would not satisfy the FCRA requirement. Written notice is required.

Quentin asks whether BKB can share this information with other employees. In a word, no. Information contained in a pre-employment background check should be treated as confidential, and can’t be shared without express written consent of the applicant.

One last point. Quentin says he didn’t sign a waiver or a consent form to conduct the background check. If he is right, BKB has yet another problem. The FCRA requires written authorization and disclosure. The authorization and disclosure should not be buried in the job application, or contain any extraneous information.

It sounds like BKB needs to review its background policies with legal counsel. In fairness, I have not heard BKB’s side of the story. But in light of the litigation I am seeing on these issues, it’s a good practice to review your policies before you have a problem, and make sure that job candidates like Quentin get a fair shake. Quentin, know your rights. Check out the Summary of Rights for consumers published here, and good luck in your job search.








Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
Angela Preston
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