FCRA pre-adverse action: what to send and when
US federal rules as of 30 Oct 2026. Not legal advice; state and city rules may add requirements.
Under the FCRA, before you reject a candidate or take action against an employee based even partly on a background report, you must send a pre-adverse action notice with a copy of the report and the CFPB Summary of Your Rights, give a reasonable time to respond.
Then send a final adverse action notice if you proceed (15 U.S.C. 1681b(b)(3), 1681m).
At a glance
- Applies when the report (or part of it) is a reason for the decision, including hiring, promotion, retention.
- The law requires "before" but gives no day count. Common practice is about five business days.
- The final notice has its own contents (provider details, no-decision statement, rights).
- Fair-chance and state laws can add more steps.
What is pre-adverse action?
It is a warning step. You tell the person you may decide against them because of the report, show them the report, and let them correct errors. The FCRA's purpose is to catch wrong or mixed-up records before they cost someone a job.
Step by step
| # | Step | Owner | Timing |
|---|---|---|---|
| 1 | Review the report and assess each item (what, when, job link) | Hiring manager and HR | On receipt |
| 2 | Decide you may take adverse action | HR | Before sending notice |
| 3 | Send pre-adverse notice, report copy, CFPB Summary of Rights | HR | Same day |
| 4 | Wait and watch for replies | HR | Reasonable period, commonly 5 business days |
| 5 | Reconsider any dispute or context | HR with counsel if needed | Within the period |
| 6 | If still declining, send final adverse action notice | HR | After the wait |
| 7 | Keep copies | HR | Per your retention policy |
Copy-paste letters are in the adverse action notice template.
How long should I wait?
The statute says you must not take the action before notifying the person; it does not set a period. The FTC's employer guide says only that advance notice lets the person review the report and say if it is correct; it names no number of days (checked 2026-10-30). Many employers use five business days as a common practice, which is not a legal rule. Some state or city laws set exact periods. California (Gov. Code 12952) and New York City both require at least five business days to respond to a fair-chance notice (California Civil Rights Department FAQ: https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/11/Fair-Chance-Act-FAQ_ENG.pdf ; NYC CCHR: https://www.nyc.gov/site/cchr/law/fair-chance-act.page ; checked 2026-10-30).
What must the final notice say?
Under 15 U.S.C. 1681m(a): the name, address and toll-free number of the reporting company; a statement that it did not make the decision; the person's right to a free copy within 60 days and to dispute accuracy with the company. Credit-score items are not relevant for most criminal-record decisions.
Common mistakes
- Sending the notice without the report or the Summary of Rights.
- Sending the pre-adverse and final notice on the same day.
- Rejecting automatically for any record, with no individual review (EEOC risk under Title VII; see EEOC guidance).
- Telling the candidate "we went another way" without the notices.
- Using a report that you did not get a standalone disclosure and written authorisation for.
How does this work in LiveRec?
LiveRec runs background checks through Checkr from the candidate page. Results show Clear or Consider; Consider means a person must review it (read results). The notice letters are yours to send. Yes: LiveRec's Send pre-adverse notice step has the screening provider send the notice, a copy of the report and the summary of rights, and records the waiting period (7 business days) before the automatic final notice.
FAQ
Does it apply if the report shows nothing but I reject for another reason? No, if the report played no part. Record your real reason.
What if the person disputes the record? Pause. The reporting company must investigate; consider waiting for the result before deciding.
Do I need this for contractors? The FCRA's employment purposes can reach contractors and volunteers; get advice.
Who sends the notice, me or the screening company? You, as the decision-maker. Some providers offer a tool, but the duty is yours.
Next step: use the notice template.
Sources
- 15 U.S.C. 1681b: https://www.law.cornell.edu/uscode/text/15/1681b (accessed 30 Oct 2026)
- 15 U.S.C. 1681m: https://www.law.cornell.edu/uscode/text/15/1681m
- CFPB: https://www.consumerfinance.gov/
- FTC: https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-employers-need-know
- EEOC: https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions
This is general information, not legal, tax or immigration advice. Rules change and your situation may differ. Consult a licensed attorney or qualified adviser.