The Fair Credit Reporting Act (FCRA) requires a "reasonable" waiting period between issuing a pre-adverse action notice and a final adverse action notice. While the FCRA doesn't specify what constitutes reasonable, 7 calendar days is generally considered an adequate waiting period.
Note that specific waiting periods can vary depending on the state or jurisdiction. See table below for further details.
You are able to see how many days are left in the waiting period on a file in the Verified First portal, so you know when Adverse Action can be taken.
What happens during the waiting period?
The waiting period ensures the applicant has a fair opportunity to dispute the information in the background check report before the employer makes a final decision.
What happens after the Waiting Period?
If no disputes are raised or resolved during the waiting period, the employer can proceed with the final adverse action.
If you need guidance on issuing Adverse Action, click here.
Breakdown of Adverse Action Requirements in Key Jurisdictions
The following table summarizes key differences in adverse action requirements under federal FCRA and the specific Fair Chance laws NYC, California (Statewide), Los Angeles County, and Illinois, specifically when the adverse action is based on criminal history information obtained from a background check.
| Feature | FCRA (Federal Baseline) | New York City (NYCFCA) | California (CFCA - Statewide) | Los Angeles County (FCOE) | Illinois (IHRA / SB 1480) |
| Timing of Inquiry | No federal restriction (but see state/local) | Post-Conditional Offer Only | Post-Conditional Offer Only | Post-Conditional Offer Only | Post-Interview Notification OR Post-Conditional Offer |
| Individualized Assessment | Not explicitly required by FCRA | Yes (Art. 23-A / NYC Factors) | Yes (Written; Nature/Gravity, Time Passed, Job Nature) | Yes (Initial Written & Second Written after response; Link to Job Risk, Factors) | Yes (Substantial Relationship/Unreasonable Risk Test + Mitigating Factors) |
| Pre-Adverse Notice Additions | Copy of Report, FCRA Summary of Rights | NYC Fair Chance Notice, Copy of Report/Info Used, Copy of Art. 23-A/Factors Analysis | Written Notice of Preliminary Decision, Specific Conviction(s), Copy of Report, Right to Respond Notice | Preliminary Notice, Copy of Initial Assessment, Copy of Report, Response Info | Written Notice of Preliminary Decision, Specific Conviction(s), Employer's Reasoning, Copy of Report, Right to Respond Notice |
| Waiting Period | "Reasonable Time" (min. 5 bus. days recommended) | Min. 5 business days | Min. 5 bus. days (+ 5 add'l bus. days if accuracy disputed & evidence sought) | Min. 5 bus. days (+ 10 add'l bus. days if requested in writing) | Min. 5 business days |
| Reassessment Required? | Consider response | Consider response | Consider response; Reassessment implied if info submitted | Yes, Second Written Assessment required after considering response | Consider response |
| Final Notice Additions | CRA Info, CRA Not Decision Maker, Right to Dispute, Right to Free Report | Standard FCRA requirements apply; Final decision communication after considering response | Final Decision Notice, Notice of Internal Challenge Procedure (if any), Notice of Right to File Complaint with CRD | Final Notice, Copy of Second Assessment, Notice of Right to File Complaint with LA County DCBA | Final Decision Notice, Basis/Reasoning, Notice of Internal Appeal (if any), Notice of Right to File Charge with IDHR |
| Record Retention | 1 year (EEOC) | Governed by general NYCHRL record retention | Governed by general FEHA record retention | Min. 4 years | Governed by general IHRA record retention |
Note: This table highlights key differences related to criminal history adverse action; employers must still comply with all baseline FCRA requirements (e.g., pre-adverse notice includes report copy and FCRA Summary of Rights) in addition to these state/local mandates.
For more information on the entire Adverse Action Process, refer to this article.
The information and opinions expressed are for educational purposes only and are based
on current practice, industry related knowledge and business expertise. The information
provided shall not be construed as legal advice, express or implied.
If you have any further questions, or need a product enabled on your account,
please contact Verified First Client Services for assistance.
Call 844-709-2708 or email ClientServices@VerifiedFirst.com
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