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FCRA Compliance and Criminal History Background Reports

On Behalf of | Mar 27, 2019 | Background Check Errors, Consumer Protection, FCRA

What Happens When a Background Report for a Job Application Picks Up A Conviction Greater Than 7 Years Old?

Here’s the scenario:  You go in for a job interview and the application asks if you have been convicted of a crime in the past 7 years.  Maybe you have a record, but it dates back 10 years.  So, you think you are in the clear and you go ahead and answer that you have not been convicted of any crime in the past 7 years.  Then the employer runs a background report, and that background report reflects your 10-year-old conviction.  The employer turns you down because of your conviction that you believed you did not have to worry about.  Did someone violate your rights?

Criminal Convictions Are Not Removed From Credit Reports

In a few words, not really.  The Fair Credit Reporting Act – though named for “credit reporting” is really not just about credit reports.  It applies to ANY consumer report – and a consumer report is one that goes beyond just our creditworthiness.  It also contains information about our character, general reputation, personal characteristics, or mode of living.  Thus, a typical background report obtained by an employer is actually governed by the Fair Credit Reporting Act (FCRA).  The FCRA mandates how long any type of information can remain on any reports about you.  While most items such as debts, judgments, unpaid loans, and records of arrest can remain on your report for only 7 years, criminal convictions actually have no limit.  The FCRA does not state anywhere when a criminal conviction has to be removed.  Translation:  It does not.  A criminal conviction can and will follow you forever.  They do not get deleted if they are not expunged.

Is This Illegal?

This leads to a great deal of confusion.  Consumers believe everything comes off a credit report after 7 years.  That, of course, is untrue.  But also, people are led to believe that someone did something wrong or illegal.  This is especially so when the employer actually tells the applicant that they are not looking beyond 7 years.  The problem is, in this scenario, nobody broke any laws.  The employer has its policy, and it also has the right to refuse employment to anyone because of their past (except no employer can refuse based upon race, age, sexual orientation, religion or national origin).   A reporting company is legally allowed to report criminal convictions forever.  So if an employer breaks with their policy because it does not like what it sees on a background report, and the reporting agency reported the truth, the unfortunate situation occurs where there is no job and no relief under the law.

Your Rights Under the FCRA

When an employer is relying on a background report to determine whether to hire, the employer MUST send a pre-adverse action notice to the applicant.  That notice must tell the person what rights they have under the FCRA, and MUST include that portion of the report that the employer is concerned about.  The employer must show you the report they are relying upon and provide you the chance to correct it.  Failure to do that violates the FCRA.  The importance of turning over the report is so that the consumer can see what the matter is – as perhaps it is not reported accurately.

If you believe your rights have been violated – maybe you did not receive your report, or maybe the report about you contains errors, please contact us at SmithMarco, P.C. as we offer a free case review.