The Fair Credit Reporting Act (FCRA) is a federal law governing background checks. The background checks are known as “consumer reports,” and the companies that prepare the background checks are “consumer reporting agencies” (e.g., Experian, Equifax, and TransUnion).
Many employers and consumer reporting agencies do not follow the law. The law requires employers to disclose to employees or applicants that they are going to run a background check. This disclosure must be in a document consisting solely of the disclosure. If the answer to any of the questions below is yes, there may be a violation of federal law:
- Is the disclosure included in the job application (as opposed to a separate document)?
- Does the disclosure include a release of liability for the employer, the consumer reporting agency, or some other party?
- Is any other extraneous information included with the disclosure, such as statements that the employee or applicant promises to obey the employer’s rules, tell the truth, etc.?
Employers are also required to send an employee or applicant “pre-adverse action notice” and a copy of the consumer report/background check before taking adverse action (firing, not hiring, etc.) against the employee or applicant. If the answer to any of the questions below is yes, there may be a violation of federal law:
- Was the applicant or employee fired/not hired over the phone and told the reason was because of their background check?
- Did the employer fail to send a written notice and a copy of the report before taking adverse action?
- Did the employer give the notice and copy of report less than 5 days before taking adverse action?
- Did the employer send a written notice but fail to include a copy of the report?
Consumer reporting agencies must keep your information current and accurate. If the answer to any of the questions below is yes, there may be a violation of federal law:
- Does the report include mistakes, e.g. someone else’s criminal history?
- Does the report include arrests or dismissed charges older than 7 years?
- Does the report include civil cases, non-criminal traffic or civil ordinance violations older than 7 years?
- Does the report include expunged cases/convictions?
- Does the report include duplicative information, e.g. listing the same DUI twice, once under “criminal” and once under “driving”?
- Does the report include inaccurate information?
If you believe that your employer or a consumer reporting agency has violated the Fair Credit Reporting Act, call Donati Law, PLLC immediately so that we can fully inform you of your rights and determine whether legal action is warranted.
