Background Checks and FCRA

Adverse Steps

Pre-adverse and final

5-7

Days Wait

Between the two notices

Ban

The Box

State and local laws

two envelopes · one wait period

The FCRA Mailbox

FCRA requires the employer to send two distinct notices when a background check leads to a hiring rejection. Skip either one — or skip the wait between — and the consent breaks.

how to read this

› Envelope 1 goes out BEFORE the check runs — the standalone disclosure + authorization.
› Envelope 2 goes out if results trouble the offer — the pre-adverse notice with the report attached.
› The clock in the middle is the 5-7 day dispute window. Skipping it breaks the entire process.
› The final envelopeat the bottom only ships AFTER the wait. It names the CRA and the candidate's right to a free copy.

Ban-the-Box and EEOC Guidance

ban-the-box

Delay the question

Most state and local laws prohibit asking about criminal history on the initial application. Many require waiting until after a conditional offer.

eeoc individualized assessment

Consider three factors

Nature of the offense. Time elapsed. Relevance to the job. Blanket "no felonies" policies create disparate impact risk.

Exam Traps

The disclosure must be standalone

Bundling FCRA disclosure into the application destroys consent validity. Even with signature, courts have invalidated the authorization.

Skipping Pre-Adverse Action violates FCRA

Two notices required, with a wait period between. Sending only the final notice fails FCRA — regardless of how clear the basis was.

Ban-the-Box does NOT prohibit asking ever

It prohibits asking too early. Most laws allow inquiry after a conditional offer or interview stage.

EEOC requires individualized assessment

Blanket "no felonies" policies create disparate impact risk. Nature of offense, time elapsed, and job relevance must be weighed.

Two notices, not one

Pre-adverse + final adverse with a wait period. Sending one notice is an FCRA violation even if the decision is correct.

Standalone disclosure

FCRA disclosure cannot live inside the job application. Separate page, separate signature.

Tell them clearly first

Disclosure on its own page. Get their signature. Authorization separate.

Run the check

The check comes back with a problem.

Pre-adverse — give them time

Hand them the report. Provide the FCRA summary of rights. Wait 5-7 business days for them to dispute.

Final adverse — confirm in writing

They could not fix the issue. Confirm cancellation. Name the CRA. Explain right to free copy.

Disclose. Authorize. Pre-adverse. Final adverse. Two notices on the way out.

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