Background Checks (FCRA)

Often times an employer offers employment to an applicant or employee on a condition that he or she submits to a background check, also known as a consumer credit report, to screen applicants and employees.  Before your employer runs a background check, it normally engages a consumer credit reporting agency.  Your employer is required to take certain and very specific steps before running a background check.  Additionally, it has a number of very specific steps it must follow prior to taking any adverse employment action (e.g. rescission of job offer, termination, suspension, etc.) based on information contained in the background check.  Here is a summary of your rights.  The main requirements are listed below.

Generally, the basic requirements, as codified in 15 U.S.C. § 1681, et seq., are as follows:

  1.  Notice and Authorization.  Before an employer may even obtain a consumer report about an applicant or employee, it must provide a disclosure to you stating that it plans on obtaining a report and that the information contained in it might be used to make an employment decision.  The disclosure form cannot be all-encompassing.
    • The notice must be separate from the other documents contained in the application
    • The applicant or employee must also authorize the employer to obtain a consumer credit report.
  2. Pre-Adverse action Procedures.  In the event an adverse employment action is taken against you (e.g. termination, etc.), the employer must, among other requirements, provide an applicant or employee with a (1) copy of the report and (2) a copy of the summary of your rights under the Fair Credit Reporting Act.
  3. Notification of Adverse Action.  In the event an adverse employment action is taken against you based on information contained in the consumer report, the employer must provide the applicant or employee with at least five items of information in the notice.  Otherwise, there is a violation of the FCRA.
  4. Certification.  An employer must certify to the Credit Reporting Agency that it has used the consumer report for a permissible purpose for obtaining the report and certify that it has complied with four other specific requirements.

One common scenario occurs when an applicant or employee has one or more convictions on his or her report.  Nevertheless, the employer still hires the employee.  Years later, however, the employer suddenly decides it wants to terminate the employee.  As such, it uses the information contained in the background check (albeit from years ago) as a reason to terminate, suspend, or otherwise discipline the employee.  Under these facts, the employer would be required to follow the above-outlined requirements prior to disciplinary action.

Another unfortunate, but common, scenario in the context of background checks occurs when a job applicant is presented with a job offer.  Prior to commencing his or her job, the employer requires running a background check.  For whatever reason, the employer decides to rescind the job offer based on information found in the background check.  Under these facts, the employer would be required to follow the above-outlined requirements prior to disciplinary action, including rescinding the job offer.

In the event an applicant or employee suffers an adverse employment action because of the information contained in the consumer report, he or she has a private cause of action against the employer if it fails to comply with the Fair Credit Reporting Act. Please note that the you generally have two years after the date of discovery by the plaintiff of the violation that is the basis for such liability to pursue your rights afforded under the FCRA. See 15 U.S.C. § 1681(p)(1).

If you have been denied employment, terminated, or otherwise disciplined because of information contained in your background check, contact us immediately to discuss your rights.  You may also contact a Columbus or Toledo attorney directly.

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