Five Actions to Take If Your Applicant Fails a Background Check

By David Estel

R Professionals know the importance of finding the most qualified person to fill their positions. Weeks, or even months, of time spent recruiting, scouring resumes, and interviewing may yield the seemingly perfect candidate, only to find unacceptable information during the background screening process.

Perhaps their criminal history shows a recent felony conviction, or their employment verification shows a discrepancy in their work history, or they have misrepresented their education.  Maybe they have left off areas they previously lived to hide aspects of their past they would rather not discuss. Or maybe their drug test came back positive, and your company offers a zero-tolerance policy on that matter.

If any of these, or any other troubling information, shows up on their employment screening report, the last thing employers should do is nothing. Avoiding or ignoring the candidate with no explanation is bad business, and can get you sued. There are certain steps to take if a person’s background screening report returns information that causes a pause in hiring them, and failing to take them can set employers up for costly hiring lawsuits. The Fair Credit Reporting Act requires certain actions be taken to maintain a fair, compliant hiring process. 

Whatever the reason, here are five actions to take if your job candidate doesn’t pass a background check. 

#1: Send a pre-adverse action letter.

When employers decide against hiring someone based on whole or in part on the candidate’s background check report, the FCRA requires that employers notify the applicant, and send him/her a pre-adverse action letter. This lets the person know there was something in their report that is negatively affecting their chances of being hired by you. Include a copy of the background report as well as a “Summary of Your Rights Under the Fair Credit Reporting Act.” It is within the candidate’s rights to dispute the information reported through the background screening company. 

#2: Give them a chance to explain. 

HR professionals and hiring managers must note that employment screening practices are not an exact science that yields 100% accurate results. Information in a background check could possibly be inaccurate because of a misspelled name during the ordering process, a date of birth entered in error, an error from the county clerk, or many other factors. Talk with the candidate about the issue, and give him or her a chance to explain. Make notes of the date the conversation took place, who participated, and what was discussed, and add them to the job candidate’s file. By hearing their side, companies are better able to see the entire picture and make a non-biased, fair hiring decision.

#3: Objectively review the entire picture. 

Take the information in the employment screening report, the candidate’s response, and the position being hired for under advisement. Weigh each piece of information carefully against the other, and against your hiring policy, before reaching your conclusion. All this leads to the best hiring decision for your company and the candidate and lessens the chances of dealing with discrimination litigation from disgruntled applicants.

#4: Make a final decision. 

Every piece of the information you have gathered about the job seeker, along with the interview process and application review of qualifications, helps you ascertain whether or not to hire this person. Take all you have learned about the candidate and formulate your final decision. If you decide to hire the candidate move forward with the offer and the onboarding process as usual. If not…

#5: Send them a final notice adverse action letter. 

Employers are required to send a “Notice of Adverse Action.” This lets the candidate know the information in their background report adversely affected them being hired. 

Give proper time between the “Pre-Adverse Action” letter and the final letter. A five-business day timeframe is what is recommended. There have been recent lawsuits by job candidates who were only given a three-day window, so don’t get in a hurry and send the final notice out too soon.

HR Professionals must walk the line between onboarding their job candidates fast with properly checking their criminal history, verifying their employment history, and confirming their education claims. And all of this must be balanced against opening your company up to the risk of a hiring lawsuit. These five actions are integral as part of company employment screening practices for HR professionals to follow in order to maintain a compliant hiring process that is fair. With hiring litigation and discrimination claims on the rise, companies need these types of policies in place to avoid lawsuits while still maintaining a safe, productive workplace. 


David Estel
National Account Executive
Background Screening
Data Facts, Inc.