What Happens If Your Employer Never Gives You a Copy of Your Background Check Report?

Many employers rely on third-party background checks when hiring, promoting, or retaining employees. In accordance with the Fair Credit Reporting Act (FCRA), a background check generally involves an employer obtaining a “consumer report” from a third-party consumer reporting agency. It is different from an employer independently finding publicly available information about you, such as through an internet search or public records.

Employees and job applicants are often surprised to learn they have important rights under the Fair Credit Reporting Act (FCRA). If an employer takes adverse action based on a background check, federal law generally requires certain notices before and after the decision.

This article explores when employers must provide a copy of a background check, what happens if they fail to do so, and what legal options may be available. Learn whether an employer must give you a copy of your background check and what the check covers. You will also know what to do if you need an old background check from an employer and you don’t receive one.

Wenzel Fenton Cabassa, P.A. has decades of experience representing employees and job applicants whose rights have been violated under the FCRA, including litigating claims involving unlawful background check practices. If you believe an employer failed to follow the law when obtaining or using your background check, contact us for a free, confidential case evaluation.

Does an Employer Have to Give Me a Copy of My Background Check?

If your employer plans to take adverse action against you based on information from a background check that was performed by a third-party consumer reporting agency, they have to give you a copy of your background check. This is all outlined by the Federal Trade Commission and the Fair Credit Reporting Act (FCRA). 

If an employer uses a third-party consumer report to make an employment decision, the FCRA generally requires the employer to provide a copy of the report and a summary of your rights before taking adverse action, such as refusing to hire, terminating employment, or denying a promotion. Adverse action based on internal investigations or records maintained solely by the employer may not be subject to the same FCRA requirements.

What is a Background Check Report Under the FCRA?

Under the FCRA, a background check conducted by a third-party screening company is legally classified as either a consumer report or an investigative consumer report. These checks help an employer learn the background of a current employee or a prospective employee but also ensure accuracy and privacy for the employee or job applicant. 

If an employer searches for publicly available information without obtaining a report from a consumer reporting agency, the Fair Credit Reporting Act generally does not apply.

A standard, document-based background check is a consumer report. This usually includes information from public records and databases. This information can include credit reports, criminal records, employment history, education verification, personal license verification, and more. Meanwhile, an investigative consumer report includes information that can only be gathered through more extensive research, including interviews. Investigators may interview friends, neighbors, or former coworkers to learn more about your background and character. 

Who Prepares Employment Background Checks?

For employers, employment background checks are typically prepared by a specialized third-party organization. These third parties include consumer reporting agencies and third-party screening companies. 

Consumer reporting agencies create background reports for a third party by collecting personal information about a job applicant. To do so, they have to work within the legal guidelines set by the FCRA. The information they collect can be found from credit bureaus, government databases, the legal system, and more. 

Third-party screening companies are consumer reporting agencies themselves, but they exclusively deal with employment background checks. They handle much of the prescreening work an employer does not have the capacity to do. This work includes verifying employment history, educational backgrounds, professional licenses, criminal records, and driving history. 

It’s important to note that certain privacy laws apply to a background screening when information comes from internal employer records and not a third-party report. Any reports created by an employer’s human resources or security team are not subject to the requirements of the FCRA. That means a candidate does not have the right to be given a background check conducted by an employer. 

When Must an Employer Provide a Copy of the Background Check?

A copy of a background check from an employer must be provided before taking adverse action against an employee, such as firing an employee, denying an employee a promotion, or deciding not to hire an employee. Notice must be given before adverse action, followed by a reasonable window of at least five business days, so that the candidate or employee has a chance to respond. 

There are instances where a copy of a background check from the employer needs to be provided before taking adverse action and after taking adverse action. 

Before Taking Adverse Action

Before making a negative employment decision, such as firing an employee, denying them a promotion, or deciding not to hire an applicant, an employer must provide a copy of the consumer report. In addition, the employer must provide a summary of rights under the FCRA and an opportunity to review and dispute inaccuracies before a final decision. 

After Taking Adverse Action

After the employer decides to follow through with adverse action, a notification that adverse action was taken needs to be given. The employee should also be given contact information for the consumer reporting agency and a statement that the reporting agency did not make the employment decision. A notice of the right to dispute inaccurate information and a notice of the right to obtain another free copy of the report within the applicable timeframe should also be given. 

What if My Employer Never Gives Me the Background Check Report

If your employer never gives you a copy of the consumer report, you may not receive important information you need regarding the adverse action taken. For instance, you may not learn why you were denied employment or terminated. You may also lose the opportunity to correct inaccurate information before an employment decision is finalized. Depending on the facts, the employer may have failed to comply with the FCRA’s notice requirements. A violation may have occurred, depending on the specific circumstances and applicable law. 

Why Receiving a Copy of the Report Matters 

A background report could contain information that is damaging to your career or reputation. If this information is being passed around, it could make it more difficult for you to pass a background check. Companies will often make employment decisions based on these background checks, so it’s important that you are able to see what these employers are seeing. Learn more about the most important reasons to receive a copy of a background check from an employer. 

Identifying Errors on a Background Check

One of the main reasons you would want to have a copy of your background report is to identify and point out errors on the report. Employers are using the information on these reports to make decisions about your future, so if you know something on these reports is wrong, you can reach out to let the relevant people know this is wrong and try to get that information corrected. Examples of errors that could be spotted include:

• Wrong criminal records
• Identity mix-ups
• Expunged records
• Incorrect employment history
• Incorrect personal information

Correcting Mistakes on a Background Check Before They Affect Your Career

The last thing you want is a mistake or misunderstanding to affect your career. You could be passed over for a job because an employer doesn’t like something in your background check that is actually not true. If you can get a copy of your background check, you can use that information to:

• Dispute inaccuracies
• Prevent wrongful hiring decisions
• Protect your professional reputation

Common FCRA Violations by Employers

Employers have to adhere to the rules of the FCRA when it comes to how they use information from background checks. Unfortunately, many employers violate these rules when making hiring, firing, and promotion decisions. These violations can open employers up to class-action lawsuits and fines from federal authorities. 

Common violations of the FCRA by employers include:

• Failing to provide a standalone disclosure before obtaining the report
• Not obtaining proper authorization
• Failing to provide the report before adverse action
• Skipping the pre-adverse action process
• Failing to provide the Summary of Rights
• Sending an incomplete adverse action notice

What Should You Do If You Never Received Your Background Check?

If you never received a copy of the background check from your employer, the first thing you should do is contact either the employer who ordered the background check or the third party that is conducting the background check. You can request your background check from both of these sources. The FCRA protects your right to have access to your background check. Requesting your background check can be done in the following steps.

Save Employee Documents

You should cover all your bases by saving as many documents as you can possibly gather regarding your previous employment history. That way, if you need to dispute something, you can show evidence. Employment documents to save include:

• Offer letters
• Emails
• Rejection letters
• Termination notices
• Background screening disclosures

Request Information from the Consumer Reporting Agency

The reason you should request information from the Consumer Reporting Agency is to protect yourself from incorrect information being used against you. Take a look at the information the Consumer Reporting Agency has on file about you and make sure that information is correct. You can ask for any errors or fraudulent information to be corrected. 

Contact an Employment Agency

Getting in touch with an employment agency will help to verify the status of your background check and try to get any delays resolved. You can also call an agency to help correct any incorrect information. 

Can You Sue if Your Employer Violated the FCRA?

You might be able to sue your employer in either state or federal court if they violated the FCRA. The point of a lawsuit is to demonstrate a violation of the regulations of the FCRA before taking adverse action against you, which resulted in financial loss. A lawsuit can potentially help you recover damages from these losses and hold your employer accountable for their illegal actions. Learn more about the potential remedies and relief that may come if your lawsuit is successful. 

Potential Remedies

Potential remedies may depend on:

• Whether the violation was negligent or willful
• Whether the employee suffered actual damage
• The specific facts of the case

Potential Relief

Potential relief may include:

• Actual damages
• Statutory damages (where available)
• Punitive damages (for qualifying violations)
• Attorney’s fees and costs

How Wenzel Fenton Cabassa Helps Employees with FCRA Claims

If you believe your employer violated FCRA laws or took adverse action against you because of incorrect information on a background check, you should contact a Florida employment background check attorney. Wenzel Fenton Cabassa, P.A. has decades of experience representing employees and job applicants and litigating claims involving FCRA violations and improper background check practices. 

Our attorneys can assist with FCRA background check claims in several ways:

• Evaluating adverse employment decisions
• Pursuing claims involving inaccurate reports
• Negotiating settlements
• Litigating employment law claims when appropriate

Why Choose Wenzel Fenton Cabassa, P.A.?

Wenzel Fenton Cabassa, P.A. has experienced Fair Credit Reporting Act and employee rights attorneys who understand the requirements consumer reporting agencies and employers must follow when obtaining and using background checks for employment purposes. Our team has experience with FCRA litigation and employee rights advocacy.  We represent employees throughout the state of Florida, including Tampa, Orlando, Miami, Sarasota, St. Petersburg, and Jacksonville. If you believe your rights under the FCRA have been violated, contact Wenzel Fenton Cabassa, P.A. for a free, confidential case evaluation.

Were You Denied a Job or Fired Without Receiving Your Background Check?

Think about taking action to protect your employment future if you were denied a job or fired without receiving your background check. Employers that use third-party background checks must follow specific FCRA requirements before taking adverse employment action. Receiving a copy of a background check from your employer gives you an opportunity to identify and dispute inaccurate information. If you believe your employer failed to comply with federal law, speaking with an experienced employment attorney can help you understand your legal options.

Contact us today for a confidential case evaluation and discuss your rights or compliance questions.