With news stories about Uber failing to catch criminal records during background checks and Ban The Box legislation to give those with criminal backgrounds a better chance at employment, there is yet another important twist in the story. Some candidates are denied employment due to criminal records on their background checks... and the record is not theirs.
Despite a background check company’s efforts to properly filter records, things like common names, date of birth matches, and similar locations can cause false positives in criminal records.
“OMG, that’s not my criminal record!”
As an Applicant: What to do
Being denied employment can feel like quite the shock to your system, especially when you are being told that you have a criminal record. You do have rights as a applicant and things you can do to ensure this doesn't happen to you.
Ensure that all data is legible and correct on your application. If the employer is using an online system to capture the data directly from you, there is less chance of data entry mistakes.
Understand that an employer cannot run a background check unless they have your prior consent.
If an employer is operating in a Ban the Box jurisdiction, they are not permitted to ask about prior criminal convictions. Stay on top of regulations in your area and check for your state here.
The employer should notify you about the information discovered on your background check and the screening company they used to obtain that information. You can receive a copy of the report and will have a chance to dispute any false findings.
You can obtain a free credit report every year. You can also run a background check on yourself to see what information shows up.
As an Employer: What to do
If an applicant background check reveals a criminal record, there are a few simple steps you should take:
Review the screening report for possible mismatched data (demographic details like Full Name, Race, Sex, DOB, and Photo matching if available)
If your Job Application permitted you to ask about any prior Criminal Convictions (not available in a “Ban-the-Box” jurisdiction), review to see if the applicant indicated Yes or No.
Send a Pre-Adverse Action Notice. The purpose of the “Pre-Adverse” Notice is to provide your applicant with the opportunity to review and/or dispute the accuracy of the information on their report (prior to the employer taking any final adverse action). This step will often clear up any misreported information. Sample Adverse Action Notices
Wait 5 to 10 business days after sending the Pre-Adverse Action Notice before sending a final Adverse Action Notice. (If the applicant disputes any of the information on their Background Check, your screening partner must research and update the report within 30 days.)
When or if the report has been corrected, your screening partner should provide both you (the employer) and the applicant with a revised background check
To limit the amount of times this happens, find a reliable screening company that offers advanced record filtering (like DoubleCheck). Also consider expanding your background check beyond a “database search”, to include a direct source. For example: County Criminal Courts, State Police Repositories, or Federal District Courts often will match on more than name and DOB (and include the most up to date disposition as well).
Consumer Rights under the FCRA
Be aware of your applicant's rights and understand that mistakes can happen. Do not jump to conclusions based on the information you've received until your applicant has had the chance to dispute any negative claims. Remember that your best candidates may have the same name or other qualifying information as someone with a criminal record. Working with a reliable background check company can help sort through these challenges.