background check rules

[patsmiley]

Hello, I recently received a job offer from Company 1 who has a contract to provide I.T. services for Company 2. The job was for Field Technician. I agreed to the background checks (2) and to be fingerprinted at a place assigned by Company 1. As far as the background check I did disclose a 12 year old conviction for dwi even though the background check was classified as going back 10 years by Company 1's letter. After nearly three weeks of what was supposed to be 3 - 5 days for results Company 1 informed me they were rescinding the job offer due to something on the background check. I received a copy of the report via email by the company that did the check. The only negative item was a pending case at my local city court for misdemeanor assault 1. Yes, I was obviously aware of the pending case but I never disclosed it because I had no idea that 1. it would come up in the report and 2. it is not a conviction! Two days after Company 1 notified me of their action I went to court on said case for Trial at which time it was dismissed without prejudice. I already knew the outcome before going by way of evidence. I contacted Company 1 to ask if they would reinstate the job offer in light of this new information. After a couple of days HR Company 1 contacted me to tell me they could not reinstate the offer because the original background check failed the qualifying rules under FINRA because of the pending case but she would not or could not provide me the actual rule or statute or number of anything. She stated they must follow what rules that Company 2 deems because they are contracted by them. Sorry so long but my question is : Is this legal? Can they really hold what was a pending case yet to be adjudicated based on a company I would not even be an employee of and then be so vague in telling me exactly what rule I "failed" in the check?? Company 2 is a financial services company and I get they have special rules to abide by but the charge the pending case was about had nothing to do with anything financial. Thank you in advance for any advice you can provide on this. Happy Holidays!

 

[Just Blue]

Hello, I recently received a job offer from Company 1 who has a contract to provide I.T. services for Company 2. The job was for Field Technician. I agreed to the background checks (2) and to be fingerprinted at a place assigned by Company 1. As far as the background check I did disclose a 12 year old conviction for dwi even though the background check was classified as going back 10 years by Company 1's letter. After nearly three weeks of what was supposed to be 3 - 5 days for results Company 1 informed me they were rescinding the job offer due to something on the background check. I received a copy of the report via email by the company that did the check. The only negative item was a pending case at my local city court for misdemeanor assault 1. Yes, I was obviously aware of the pending case but I never disclosed it because I had no idea that 1. it would come up in the report and 2. it is not a conviction! Two days after Company 1 notified me of their action I went to court on said case for Trial at which time it was dismissed without prejudice. I already knew the outcome before going by way of evidence. I contacted Company 1 to ask if they would reinstate the job offer in light of this new information. After a couple of days HR Company 1 contacted me to tell me they could not reinstate the offer because the original background check failed the qualifying rules under FINRA because of the pending case but she would not or could not provide me the actual rule or statute or number of anything. She stated they must follow what rules that Company 2 deems because they are contracted by them. Sorry so long but my question is : Is this legal? Can they really hold what was a pending case yet to be adjudicated based on a company I would not even be an employee of and then be so vague in telling me exactly what rule I "failed" in the check?? Company 2 is a financial services company and I get they have special rules to abide by but the charge the pending case was about had nothing to do with anything financial. Thank you in advance for any advice you can provide on this. Happy Holidays!

What state?

 

[patsmiley]

arizona

 

[Taxing Matters]

Sorry so long but my question is : Is this legal? Can they really hold what was a pending case yet to be adjudicated based on a company I would not even be an employee of and then be so vague in telling me exactly what rule I "failed" in the check??

The main rule for background checks for private employers under federal law is under the Fair Credit Reporting Act (FCRA), which, despite its name, covers more than just credit reports. It covers what it calls consumer reports, and included in that are reports that an employer obtains on an employee or applicant using a third party service, e.g. a background check company. It does not cover background checks done by the employer itself. The law requires that the employer get your written consent for the third party background check and requires that if an adverse decision is made against the employee or applicant because of the report that the employee be informed that the report was a factor in the decision and provide the employee with a copy of the report. The law does not require the employer to provide any details of its decision other than the fact that the background check was a factor in that decision nor does the law require that the employer change its decision if the employee/applicant shows the employer the information was wrong or provides new information that would mitigate what was on the report. So, in short, just from what you said here it appears the company complied with the FCRA and you'd have no legal claim under federal law for this.

Arizona has a state law very similar to the FCRA. It also has a law, now adopted by a majority of states, called "ban the box" which prohibits asking about criminal convictions on the initial employment application, but the company can ask about convictions, etc., later in the process. You can ask an Arizona employment law attorney to go over all the details of this and advise you if you have anything to pursue, but just based on what was said here I'm not seeing anything that would help you. But since most attorneys give free initial consultations you have nothing to lose by contacting an attorney in Arizona and seeing what he or she says.

Did the form you fill out only ask for convictions? Or did it also ask for any pending criminal cases? If the questions on the form would include pending cases then the best thing to do is disclose the pending case and provide the details of where it is in the court system at and what outcome you may expect. If you fail to provide that information when asked and they find it on a background check that'll get you disqualified with many employers right off the bat for dishonesty. And dishonesty is a major problem in getting employment with a FINRA registered employer.

 

[patsmiley]

Thank you for your reply. To answer your questions about the form; there was no form just an email regarding the background check stating that they would be accessing work history, criminal records, past employers, etc. It did not go into detail except to says the entire search would only go back a period of 10 years. What I am really trying to ascertain is if they are going to disqualify me and point to another company and there rule of FINRA why shouldt they provide exactly what rule because it is my understanding that FINRA as well only references convictions, not pending cases yet I cannot even confirm that because they wont provide the section, number or paragraph, anything for me to look it up. I am amazed and I don't doubt your accuracy when you say the employer does not have to change their decision even if shown the information is incorrect! Seems to me that would make the whole process a moot point. Is there no law anywhere that tells an employer to state exactly what is and is not acceptable when doing these checks?

 

[cbg]

the employer does not have to change their decision even if shown the information is incorrect! Seems to me that would make the whole process a moot point

The employer has no doubt gone on with the process and hired someone else. Are you suggesting that upon being shown an error, the law should require that this person be fired and you (generic you) be hired in his place?

 

[Taxing Matters]

Thank you for your reply. To answer your questions about the form; there was no form just an email regarding the background check stating that they would be accessing work history, criminal records, past employers, etc. It did not go into detail except to says the entire search would only go back a period of 10 years.

But didn't they ask you any questions about your criminal background? Or did they not ask you anything about that and were just going to rely on that background check?

What I am really trying to ascertain is if they are going to disqualify me and point to another company and there rule of FINRA why shouldt they provide exactly what rule because it is my understanding that FINRA as well only references convictions, not pending cases yet I cannot even confirm that because they wont provide the section, number or paragraph, anything for me to look it up.

There are two things to know about that. First, neither federal nor state law requires that a private employer tell an applicant the precise reason he or she is not hired. In most circumstances an employer can simply say "we are not hiring you" and leave it at that. However, when at least part of the reason is a background check, the employee must be told that the background check was a factor in the decision and either give the employee a copy of the report or give the employee the information to get a free copy of the report from the background check company.

Second, the employer doesn't have to cite any laws that might be a barrier to hiring you. Even if the FINRA rules would not have extended to you for the IT position the employer can still say they think the failure to mention it (if they had asked for it) or the fact of the pending charges are there is a problem and not hire you for those reasons as neither of those reasons amount to illegal discrimination.

I am amazed and I don't doubt your accuracy when you say the employer does not have to change their decision even if shown the information is incorrect! Seems to me that would make the whole process a moot point.

There is a purpose to it. The process requires that he employer tell you the background check was at least part of the reason you weren't hired and to give you a copy of the report it used. The reason for that is so that you can check the report for accuracy and dispute anything that is incorrect with the background check company so that when you next apply for a job and they pull that same background check they'll get an accurate report to use. But while that helps you with future applications, it doesn't require the employer that rejected you over an incorrect item to hire you when you point out the error.

Is there no law anywhere that tells an employer to state exactly what is and is not acceptable when doing these checks?

All that the law requires the employer to tell you are two things: (1) prior to getting the report, it must tell you it will get the background check, that it will use that check in making its decision, and get your written consent for it and (2) if the employer decides after getting the report not to hire you because of something in that report the employer must tell you that the report was factor in the decision and give you access to the report it used. The law also requires that consumer reporting companies (like employee background check firms) need to ensure, to the extent they can, that the information in their reports is accurate.

Your problem, however, is not that the report had errors. It's that it truthfully reported a pending misdemeanor assault case that had not yet been resolved at the time. The employer certainly can take that into account when deciding whether to hire you. Sure, you got the case resolved in your favor later, but by then the employer had already made its decision and presumably moved on to hire someone else. That ship had sailed, and the employer is not required to hire you upon learning of the ultimate outcome. Note, too, that since it was dismissed without prejudice, that would leave the employer to wonder if the state may later come back and file charges again after fixing whatever caused the court to dismiss it.

 

[patsmiley]

I really appreciate all of your replies. I must say that I am not shocked at what little protections applicants and employees have to this day. To say that an employer can require a background check but not disclose what will be considered qualifying or dis-qualifying is ridiculous, but not as ridiculous to say that if an item came up on said report, even if that item didn't even belong to the applicant that the employer can still rescind it's offer. If I seem upset about the issue please understand that I was left waiting for over a month until they rescinded the offer. To me this clearly shows the imbalance of the employer/employee model in the U.S. While corporations take in billions of dollars in NET profits we the little people continue to be walked on and enslaved. Thank you again to all of you!

 

[quincy]

I really appreciate all of your replies. I must say that I am not shocked at what little protections applicants and employees have to this day. To say that an employer can require a background check but not disclose what will be considered qualifying or dis-qualifying is ridiculous, but not as ridiculous to say that if an item came up on said report, even if that item didn't even belong to the applicant that the employer can still rescind it's offer. If I seem upset about the issue please understand that I was left waiting for over a month until they rescinded the offer. To me this clearly shows the imbalance of the employer/employee model in the U.S. While corporations take in billions of dollars in NET profits we the little people continue to be walked on and enslaved. Thank you again to all of you!

If you were denied employment based solely on information from a background check company, the employer needs to tell you the name of the background check company they used so you can dispute any misinformation that might be included in the report.

This doesn’t mean that the employer has to hire you, even if they based their decision on erroneous information, though.

It can be important to run your own background checks on yourself prior to applying for jobs so you know what shows up, so you can correct any errors, and so you can address any negative information up front.

 

[cbg]

I ask again; are you saying that you would support a law that required the employer, upon being shown an error in a background check, to then fire the person they had hired in order to (forcibly, by mandate and with no choice in the matter) hire the person whose report had the error?

 

[FlyingRon]

An employer is never required to say what the criteria for making the hire/no hire decision is. The only thing they can't do is have a reason prohibited by law.

 

[patsmiley]

I ask that an employer be required if upon notice of a negative item in a background check allow a certain amount of time for the applicant to respond or show that it needs correction before said applicant is dismissed and someone else is hired!! To dismiss an applicant for a negative item on a report that may or may not even belong to them without the ability for the applicant to dispute it BEFORE losing the job opportunity.

 

[eerelations]

I ask that an employer be required if upon notice of a negative item in a background check allow a certain amount of time for the applicant to respond or show that it needs correction before said applicant is dismissed and someone else is hired!! To dismiss an applicant for a negative item on a report that may or may not even belong to them without the ability for the applicant to dispute it BEFORE losing the job opportunity.

But there are no laws requiring this. Just because you ask it doesn't make it so.

 

[BuyLowSellHigh]

Fortunately one of the great things about our country is you have the opportunity to open your own corporation. If you feel employees are being walked on and enslaved, then open your own corporation and treat employees the way you think they should be treated.

 

[Taxing Matters]

I ask that an employer be required if upon notice of a negative item in a background check allow a certain amount of time for the applicant to respond or show that it needs correction before said applicant is dismissed and someone else is hired!! To dismiss an applicant for a negative item on a report that may or may not even belong to them without the ability for the applicant to dispute it BEFORE losing the job opportunity.

That's something to write your state legislators and congressional representatives about to ask that the law be changed to require that. As it stands now, though, neither federal law nor the law of any state (so far as I am aware) requires that an employer do that.