Over the course of the last few months, the debate about when to do a background check – before or after a job offer has been made – has continued. A recent civil suit, Miller v. Johnson & Johnson, et al., discloses that it doesn’t matter whether or not an actual offer of employment has been made. If employment is going to be denied because of information contained in a background check, the applicant must be provided with a “preadverse action disclosure,” as required by the Fair Credit Reporting Act, and must be given the chance to dispute the accuracy of the information contained in the background report. In a nutshell, the court held that Johnson & Johnson didn’t provide notice of its intent to take an adverse action because of what was in the background check.
The FCRA specifies very clearly what steps must be taken in situations like this one. The important thing to remember is it’s not what someone in your organization thinks the FCRA requires, it’s actually what it does, in fact, require that matters.