Easy on the Trigger – Automatic Exclusions for Background Checks

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There is a common occurrence when speaking with HR professionals about background screening compliance.Each time I discuss the EEOC’s guidance on the use of arrest and conviction records, I mention that when a report comes back with a conviction record it needs to be reviewed on a case-by-case basis. Employers cannot have blanket exclusions for certain offenses.

This immediately sends a hand in the air from an HR professional working in the banking industry.

“The FDIC requires that certain convictions, such as theft, be automatic exclusions from employment. So this doesn’t apply to me.”

It is true that the FDIC requires this and that the FDIC guidelines also supersede the EEOC’s guidance on the matter. Being regulated by the FDIC is not, however, a carte blanche for excluding individuals whose report returns with a criminal conviction. Employers working in federally regulated industries are still required to follow the pre-adverse and adverse action steps of the Fair Credit Reporting Act.

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The reason why Background checks contain information from court records and occasionally the court record is wrong. Most often, a case that was expunged was not recorded as such. Rarely (but it does happen), a criminal conviction is filed under the wrong name. So, it is possible for the theft conviction on your applicant’s background check to be inaccurate.

It is very important to give your applicants the chance to review and dispute the contents of their background check before making an adverse hiring decision. It covers you in the event that the information is correct and it protects your applicant in the case that it isn’t.


  • The recommended waiting period between the pre-adverse action notice and adverse action is 5 days.
  • When giving a pre-adverse action notice, include a copy of the background check and cite specifically what would exclude them from the position
  • Other Documents to include:
    • State Specific Disclosures if job is located in NY, NJ, or MA
    • Remedying the Effects of Identity Theft – found easily through a quick Google search