Client:
We had someone start before their background check cleared—there was a delay, and we didn’t want to hold up onboarding. Now the results are in, and there are some serious concerns. What are our options? Can we still let them go?
Consultant:
It’s a tough position, but not an uncommon one. Many employers move fast to fill roles—and when the background check lags, it can backfire. The key now is to assess the risk, the role, and your policy before taking action. You’re not stuck—but you are on thinner ice if the process wasn’t followed.
Client:
I know we shouldn’t have let them start early. Does that mean we’re out of options?
Consultant:
Not necessarily. It depends on what the background check revealed, how relevant it is to the job, and whether you clearly communicated that the offer was contingent on passing the check.
Start by reviewing:
– What exactly came up?
– Is it directly related to the work they’ll be doing?
– Did your offer letter or policy state that continued employment was subject to background check results?
If yes—you still have a path forward.
Client:
What if the issue is serious—like a criminal record they didn’t disclose?
Consultant:
Then you may have just cause, especially if the offense relates to the nature of the work (e.g., theft in a financial role, violence in a public-facing role). Be careful though: some states have restrictions on using conviction records in employment decisions.
Say:
“We received the results of your background check, and there are findings that are inconsistent with the expectations for this role. We need to discuss next steps, and I want to give you an opportunity to provide any additional context.”
Always allow them a chance to respond before finalizing any decision.
Client:
What if the record isn’t directly related to the job?
Consultant:
Then you’re in more delicate territory. Consider:
– Is there a policy that outlines disqualifying offenses?
– Has the employee demonstrated performance or behavior concerns since starting?
– Could this be an opportunity for a second-chance employment conversation?
If the answer to all three is “no,” you might move forward with termination—but only after weighing risks and precedent.
Client:
Do we need to follow a specific process before letting them go?
Consultant:
Yes—especially if you’re using a third-party background check provider. The Fair Credit Reporting Act (FCRA) requires:
1. A pre-adverse action notice including a copy of the report and a summary of rights.
2. A reasonable wait period (typically 5 business days).
3. A final adverse action notice if you decide to terminate.
This gives the employee time to dispute or clarify any inaccuracies.
Client:
What do I tell the team if we let them go?
Consultant:
Keep it simple and professional—focus on role coverage, not the reason for departure.
You can say:
“There’s been a change in staffing, and we’re adjusting our assignments while we find the right fit. I’ll keep you updated on the next steps.”
Confidentiality is key.
Client:
So, we’re not stuck—but we need to slow down and follow the right process now?
Consultant:
Exactly. Act with care, consult legal if needed, and document every step. And moving forward—don’t start until all conditions are cleared.
Recap:
✔ Review the nature and relevance of the background check concern
✔ Confirm your contingent offer language and policy
✔ Follow FCRA if a third-party vendor was used
✔ Give the employee a chance to respond
✔ Document your process and communicate with care
And if you need help navigating the legal steps or tightening your pre-employment process—we’re here to support you.