Updated: Sep 14
On May 3, the 8th U.S. Circuit Court of Appeals ruled that job applicants don’t have the right to explain accurate background check results in the adverse action process. In this case, the plaintiff argued that she should have had a chance to explain the conviction before employment was denied. But she did not claim the results were inaccurate.
The FCRA requires employers to follow the adverse action process, which provides applicants an opportunity to dispute the accuracy of their background check. However, the Act doesn’t specifically address the rights of the applicant to explain negative but accurate information reported. However, employers should be aware that this contradicts the 2012 guidance from the Equal Employment Opportunity Commission (EEOC) regarding consideration of criminal records in hiring. The EEOC specifically recommends conducting an individualized assessment on relevant records to consider the circumstances around the offense, among other considerations.
The 8th Circuit Court has jurisdiction in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. And while the 8th Circuit has stated that only FCRA plaintiffs who suffered concrete harm can assert FCRA claims (and not technical violations) this is not the case in all courts. Other federal circuit courts have different opinions, and some state courts may not require a concrete injury.
Employers should continue to follow the adverse action process required by the FCRA, which includes sending a pre-adverse action letter to notify the applicant that the company is considering making an adverse hiring decision based in whole or in part on the information included in the background check. While the FCRA intends this step to allow the applicant to dispute information, it is in the best interest of employers to allow the applicant to respond and explain the conviction(s), even when accurate. Employers should also consider being proactive and conducting an Individualized Assessment, as recommended by the EEOC.
Employers also must be aware of and compliant with state and local requirements related to hiring. Many locations have additional requirements resulting from Fair Chance Hiring laws, which require additional time or employer actions before making an adverse hiring decision based on criminal records.
Sabrina Sawyer is the CEO of Integris and the VP of HR and Business Solutions at Associated Industries, a premier employer association located in Spokane, WA.
The information provided is not intended to constitute legal advice and is for informational purposes only. Employers are strongly advised to consult with legal counsel on matters related to the Fair Credit Reporting Act.