In a recent case, the 8th U.S. Circuit Court of Appeals ruled that the Fair Credit Reporting Act’s (FCRA’s) requirement to provide job applicants with the right to dispute the accuracy of background checks does not simultaneously provide a right to argue accurately reported convictions.
In doing so, the court dismissed a lawsuit filed by an applicant against a data-processing firm, where the applicant alleged that the company violated the FCRA by rescinding the offer before she could review her pre employment background check report and discuss it with them. After the company saw that she had been convicted of murder and armed robbery and was sentenced to 25 years in prison, but before she had a chance to explain the results, her job offer was rescinded.
Background Check: 8th Circuit
Under this precedent, employers located in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota (8th Circuit) do not necessarily have to provide applicants with a chance to explain a negative finding on their background check before rescinding the job offer. However, it’s important to note that while this court reached this specific conclusion, it was based on the accuracy of the conviction and failing to show concrete injury. Other courts have found differently. Further, not all state courts require a concrete injury standing, and state laws vary on background check requirements overall.
Best practices for employers in similar situations include, (1) working closely with their PBSA-certified background check company, (2) working closely with their employment attorneys, (3) reviewing policies regularly, (4) ensuring compliance with all laws that impact their processes, and, as always, (5) providing notice and a chance to respond to adverse action.
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For more information on the adverse action process or if you need help reviewing your own policies, please contact us.
