Do Employers Have To Provide Employees With a Copy of Their Background Check?

Background checks are now integral to the hiring process and can make or break an application.A job offer can quickly move forward with positive approval; however, any negative signal can just as easily halt the process.

While the background check process is relatively straightforward, what happens next isn’t always, and one particular point that often comes up is whether employers provide candidates with a copy of their background check. 

It can be a murky area that sits between transparency and legal compliance, so let’s take a look at the facts.

The Importance of Communication in Background Checks

Transparency is key during the background check process. Applying and interviewing for a job can be a stressful, panic-inducing endeavor on its own, and the last thing employers should do is make the situation worse. 

Many candidates feel anxious when a background check request goes out—even if they have nothing to fear. Something about human nature instantly jumps to the worst-case scenario.

At this point, a clear flow of communication between candidate and employer can make all the difference. Candidates don’t want to be left waiting, unsure whether they passed the check but still didn’t get the job or didn’t get the job because of something that appeared during the check. It’s a delicate situation but one we recommend handling with as much grace and humanity as possible. 

Then, there are possible legal ramifications. Federal regulations, like the Fair Credit Reporting Act(FCRA), were designed to protect both candidates and employers by encouraging this transparency. These are rules you don’t want to tangle with, as there has been a surge in credit reporting lawsuits in the United States over the last few years. 

Candidate Rights Under the Fair Credit Reporting Act (FCRA)

So, what exactly is the FCRA? Here are some key rights that candidates are entitled to under the law:

1. Notification Requirements

Employers must inform candidates that a background check is being carried out by law. This notification needs to be clear, upfront, and without any possibility of confusion. This means not sneaking it into a pile of onboarding paperwork or hiding it in fine print, and it should appear in a stand-alone document. 

It’s also good practice to verbalize the situation to a candidate and allow them to ask questions should they wish. This isn’t the law but a nice way of doing things.

2. Obtaining Consent

Here’s another vital point that, shockingly, some employers overlook entirely. Legally, you cannot conduct a background check on anybody without their written consent. Doing so opens the door to a torrent of possible litigation issues, which must be handled correctly. Make sure they’ve signed the required document, or don’t move forward with the check. 

3. Disclosure of Results & Rights

When a background check comes back, if an employer decides to take an adverse action based on what they find in a background check, they must provide the candidate with a copy of the report. This isn’t just a nicety; it’s a rock-solid aspect of the FCRA that companies cannot play around with. 

Sometimes, employers might shy away from doing it because the candidate is out of the picture, but again, this is something you need to get right; otherwise, it might come back to bite you. 

Employers need to provide a summary of the candidate’s rights under the FCRA along with that report. That way, candidates understand what they can do if they believe the information is inaccurate or misleading.

Pre-Adverse & Adverse Action Notices

If a red flag appears in a background check, the FCRA has very specific guidelines regarding adverse or negative action taken as a result. These can be broadly divided into two categories: pre-adverse and adverse actions.

Pre-Adverse Action

Before any significant action takes place, employers must issue a pre-adverse action notice to the candidate. This should be seen as a pre-warning that something negative might be on the way and make it clear that the background check has highlighted points that affect a candidate’s chances of getting the job. 

The notice will also include a copy of the background check and the candidate’s rights under the FCRA, allowing the candidate to correct any mistakes or explain any discrepancies in the report before the employer makes a final decision.

Adverse Action

If the candidate doesn’t dispute the findings or the employer decides to move forward with their decision, the next step is to issue an adverse action notice. There’s no nice way to look at this; it’s a rejection based on the findings from the background check, but it still should be handled in the best possible manner. 

The adverse action should include a statement that the background check led to the decision, the contact information of the background check provider, and another reminder of the candidate’s rights. 

Ensuring Compliance & Transparency as an Employer

Sadly, plenty of employers don’t handle this process well. Even if they remain within the law, adverse action is sometimes undertaken with a callousness that isn’t needed. Remember, this is simply a person who has applied for a job and is about to be rejected because of something in the past. 

When employers manage situations with grace and transparency, it can effectively soften the impact. One of the most straightforward ways is using a reputable background check service provider. These services often come with built-in compliance measures, ensuring that you don’t accidentally skip a step and end up facing legal trouble down the road. 

Employers should also aim for open communication with candidates. From the beginning, be upfront about the process, explaining why the check is necessary, what the candidate can expect, and what happens if something negative appears. 

We’ve all experienced the nerves of applying for a job and agreeing to a background check. If the person sitting opposite is friendly, open, and the situation can dramatically improve. 

Final Thoughts

Not getting a job because there was a better candidate can be tough, but missing out on a position because of a background check issue can be frustrating. How employers respond at this point will often remain long in the memory. While they don’t necessarily need to provide a copy of a background check to every single employee or candidate, they do need to offer it when any sort of adverse action is coming. 

If you’re an employer looking to streamline this process and avoid potential pitfalls, consider using a professional service like ScoutLogic. They offer comprehensive background check services designed to make the process as smooth and compliant as possible, meaning that those issues buried can be highlighted and evaluated clearly and with as much compassion as possible.

David Garcia

David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.

David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.