Background Checks

Use of Criminal Background Checks for Employment Purposes

If employers want to rely on a background check for job applicant screening, or to take adverse action against an employee, they must follow strict notice rules under the Fair Credit Reporting Act (FCRA). Unfortunately, some employers, including some of the nation’s largest companies, ignore those obligations. According to a recent study published by the National Employment Law Project (NELP), “the nation’s largest employers are either unaware of civil rights and consumer protections for people with criminal records or are indifferent to them.”

Employers who willfully violate these rights can be required to pay actual damages, punitive damages, and statutory penalties up to $1,000 per violation. Two important rules are below:

• Before an employer can run a background check: Applicants and employees must consent to the background check in writing, and applicants and employees must be provided with a stand-alone disclosure that does not include a liability release.
• Before an employer can deny employment or fire someone based on a background check: Employers must tell the applicant or employee they intend to rely on the background check in taking the adverse action, they must provide the applicant or employee with a copy of the background check, and they must give the applicant or employee a reasonable amount of time to dispute the report.

If you suffer an adverse employment action and your employer failed to follow these rules, contact our employment attorneys because you might have a legal claim.

The Age of Content in Background Checks

Background check reports must be accurate and current. Consumer reporting agencies are not supposed to report information that is too old. In general, if information is more than seven years old, it is too old and should not be on the report. There are some exceptions for criminal convictions, but they generally should not include information relating to old traffic offenses or old criminal charges that were ultimately dismissed.

If your background check report includes information that should have been omitted, you might have a legal claim.

You are Entitled to a Copy of Your Background Check

Just as you are entitled to a free copy of your credit report, you are also entitled to a free copy of any background check or criminal history report obtained an employer. You can request the copy from the employer or the reporting agency that ran the report.

If you believe you might have a claim arising from an employment background check, you should act quickly to preserve your claim. Contact our employment attorneys to discuss your situation.

• Your employer or potential employer runs a background check on you without your written consent.
• Your employer or potential employer runs a background check on you without first giving you a proper disclosure.
• Your employer or potential employer fires you, reduces your pay, demotes you, or refuses to hire you because of a background check: (1) that you did not consent to; (2) that you did not receive a proper disclosure for; (3) that you did not receive a copy of; or (4) that you were not given a reasonable chance to dispute.