United States Representative George Santos has been in the news lately as revelations have surfaced of his false claims regarding his educational background and work experience. The falsifications include statements that he attended the prestigious Horace Mann prep school, graduated from an Ivy League college, and worked at Goldman Sachs and Citigroup. As a result, many are calling for Santos to step down, and the New York Attorney General has opened an investigation into the matter. Recently, even more allegations of campaign finance violations have surfaced. Many voters feel duped, and calls for Santos’s resignation have been mounting.
Unfortunately, false statements on a resume do occur, even among those who are not running for Congress. The potential for false representations is why most employers conduct background checks on potential job candidates.
Indeed, employees are sometimes terminated and job offers rescinded when false information is found. However, before employers can take such action, they must follow the Fair Credit Reporting Act (FCRA) and related state laws. Below are the key requirements that employers must follow under the FCRA.
Obtain informed consent from an employee to conduct the background check.
Employers must provide all candidates with written disclosure of their intent to conduct a background check. This disclosure document must be presented on its own, and not mixed in with an orientation packet or other onboarding paperwork.
Further—and before proceeding with the background check—employers must obtain a signed consent form from the job candidate, acknowledging that the check will happen and providing consent for the check to occur.
Employers must also inform candidates of their rights under the FCRA by providing a copy of the FCRA Summary of Rights document.
Provide employees with the right to review their background check information and correct any inaccuracies.
Before making the final hiring decision, employers must inform candidates of their rights under the FCRA and offer them an opportunity to correct errors on their reports.
Employers should be aware that federal and state laws prohibit employers from excluding individuals based on past arrests. Further, federal and state laws prohibit excluding individuals with a criminal record, so long as state or federal regulations do not forbid hiring a person with criminal records from holding the job, and so long as the conviction is not relevant to the job.
Many states, including Illinois, also follow “ban the box” regulations, which restrict employers from asking about criminal records until after determining that a candidate is qualified for the job.
Notify employees if a decision was made not to hire them based on the results of a background check.
If an employer finds unsatisfactory information in a background check that results in a decision against hiring, retaining, or promoting an individual, the employer must provide the individual with written notice, or a Pre-Adverse Action Notification. Employers must provide the contact information for the agency or company that provided the unsatisfactory information.
Allow employees the opportunity to appeal those decisions.
Employees should be afforded an opportunity to refute or explain the unsatisfactory information. When the employer still decides not to hire the candidate, a Final Adverse Action Notice must be sent to the candidate.
Sometimes, false information may not come to light until well after an employee has started working for an employer. To address such scenarios, it is advisable for employers to have a policy in place that explains which types of false information rise to the level of a terminable offense.
Honesty is a critical trait in a good employee for any business and across all industries (including in Congress). A thorough, yet compliant, background check can help employers ensure that they are hiring honest employees, the kind who who will take their responsibilities seriously, will not compromise their ethics, and will not risk exposing the company to liability.