Background Reports and the FCRA: The Weiner Law Firm

It is no surprise that it can be difficult for ex-offenders to obtain and maintain employment because of potential employers’ misconceptions and assumptions.  To combat these issues, one tool in the ex-offenders’ toolbox to ensure that they receive due process in the employment arena is the Fair Credit Reporting Act (the FCRA).  The FCRA is a broad federal law that requires that employers and background report companies give employees and applicants a fair shake with respect to background reports that they run on those individuals.  Every employer in the United States is subject to the FCRA, regardless of size, and the FCRA protects both applicants and current employees when employers run background reports on them.  The statute of limitations for violations of the FCRA is two years, so employers may still be liable for violations of the FCRA even if they occurred some time ago.  Some common examples of violations are below:

Required Notices:  One common scenario is an employer telling an applicant that they cannot be hired after running a background report, without providing that applicant with a copy of the background report or the applicant’s rights under the FCRA.  If the employer does not provide this information, the employer may have violated the FCRA.

The FCRA requires employers to provide a notice (a pre-adverse action notice) to an applicant when taking an adverse employment action based on information in the background report.  The pre-adverse notice must include a copy of the background report and a summary of the applicant’s rights under the FCRA.  The purpose of the pre-adverse action notice is to allow the applicant an opportunity to clear up any misstatements in the report and to address any misunderstandings the report may have created in the employer’s mind.  For this reason, the employer must provide the pre-adverse action notice to the applicant BEFORE the employer takes the adverse employment action. While there is no rule as to how many days must elapse between the pre-adverse action notice and the adverse action itself, anything less than five days is typically considered unreasonable.

Keep in mind that the employer must provide an applicant with the pre-adverse action notice even if the information in the background report is entirely accurate

Inaccurate or Unreportable Information:  Background reports often times contain inaccurate information about an individual.  For example, some reports may associate someone with criminal records that do not belong to them, or may mischaracterize the disposition of a criminal record that does belong to an individual (i.e., report a misdemeanor as a felony).  Background reports may also contain accurate information that cannot be reported because too much time has passed since the incident.  While criminal convictions can be reported indefinitely, non-conviction information (i.e., arrest records) are subject to a seven-year reporting period.  If the background report contains information that does not comply, there may be an FCRA violation.

Individuals have the right to dispute inaccurate information with thebackground reporting company who created the background report.  And, if the inaccurate information caused an employer to take an adverse employment action, the individual may have claims against the background reporting company and possibly the employer for failure to follow the pre-adverse action process.

Disclosure and Authorization Forms:  When a prospective employer wants to run a background check on an applicant, it must first provide a disclosure to the applicant that a background report may be obtained for employment purposes, and obtain an authorization from the applicant to run the background report.  The disclosure must be clear and conspicuous.  That simply means that the disclosure must be on its own paper, separate from the rest of the application.  If the disclosure is jumbled with the rest of the employment application, there may be an FCRA violation.  Likewise, if the employer did not obtain authorization to run the background report before doing so, there may be an FCRA violation as well.

Pre-Determined Hiring Criteria:  Often times, background report companies have systems to automatically classify applicants as “do not hires,” red versus green, or the like.  These systems sometimes violate the FCRA because, essentially, they make the employment decision for the employer without complying with the pre-adverse action requirement described above.  In other words, they automatically disqualify a job applicant before permitting them the opportunity to challenge the content of the background report.

The Weiner Law Firm handles FCRA matters across the county in which employers and background report companies do not comply with the FCRA.  If you think you might have experienced any of the issues described above within the last two years or you just have questions about the process, you can contact them to discuss whether you have any legal recourse.  The Weiner Law Firm does not charge a fee for the consultation and often accepts representation on a contingency basis, and they can often advise individuals of their legal rights so that they can stand up for themselves without having to worry how to pay an attorney.  Jeff Sand can be reached at (404) 205-5029 or js@atlantaemployeelawyer.com and Andrew Weiner can be reached at (404) 254-0842 or aw@atlantaemployeelawyer.com.

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This article was written by The Weiner Law Firm.

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