Can an Employer Fire You After a Background Check?

The hiring process can be a challenging one, involving numerous steps. Background checks are becoming increasingly common, but what happens if the results of a background check lead to your termination? In this article, we will explore the legalities surrounding this issue, including at-will employment, background check disclosures, and state-specific laws.

The Role of At-Will Employment

In many countries, employment is considered at-will. This means that an employer has the right to terminate an employee for any reason, as long as it is not discriminatory or in violation of specific labor laws. However, if the termination is based on the results of a background check, there are certain procedural safeguards that must be followed.

Background Check Disclosure and Consent

When an employer plans to conduct a background check, they are legally required to disclose this to the potential employee and obtain their consent. This disclosure must occur at an appropriate stage of the hiring process, typically before or during the recruitment stages. Failing to provide this disclosure or obtain consent can render the results of the background check inadmissible in court.

Adverse Action and Legal Procedures

Should an employer decide to terminate an employee based on information discovered during the background check, they must follow an adverse action process. This process is designed to protect the employee's rights and ensure transparency. The adverse action process usually includes:

Notifying the employee of the specific information that led to the decision Providing the employee with an opportunity to contest or provide additional information Documenting all communications and actions taken Following up with any recommendations for resolving the issue

State-Specific Laws and Protections

It is important to note that state laws can significantly impact the rights of both employers and employees regarding background checks. For instance, some states may have additional protections, such as restrictions on what types of criminal history can be considered and how it can be used in employment decisions. Employers must be aware of and comply with these laws to avoid legal consequences.

Challenges and Lapses in the Hiring Process

Employers may terminate employees after a background check for various reasons. These can range from a poor attitude to lying on an application. If an individual fails to disclose relevant information on their background, the employer can use this as a basis for termination. Criminal history, for example, is a common reason for hiring decisions, and lying about criminal charges can lead to immediate termination.

At-Will Employment and Non-Disclosure

In at-will employment states, an employer generally does not need a specific reason to terminate an employee. Even in non-at-will states, an employer can still choose to terminate an employee, though they may face legal action. It is crucial for employees to be aware that termination can occur at any time, even if the employer does not provide a reason.

For instance, if an employee's references provided negative information or if the employer conducts a background check that uncovers information that previously went unmentioned, the employer may choose to terminate the employee. Additionally, budget constraints or changes in company needs can also lead to the decision to reduce the number of employees.

It is advisable for employees to understand their rights and consider consulting with an employment lawyer if they believe their termination is unjust or discriminatory. Seeking legal advice can provide additional clarity and support in navigating these challenging situations.