Fair Credit Reporting Act applied to criminal records

The following is a summary of how the Fair Credit Reporting Act (FCRA) applies to criminal background checks, written by Sharon Dietrich of Community Legal Services of Philadelphia.  More detailed information about FCRA’s interpretation and enforcement is available in this 2011 FTC report.  Current information about FCRA’s enforcement as applied to criminal records will appear in the upcoming third edition of Collateral Consequences of Criminal Conviction: Law Policy and Practice.  

Where a criminal record report is provided to an employer by a credit reporting agency (“CRA”), the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq, is applicable. See Beaudette, FTC Informal Staff Opinion Letter, June 9, 1998 (available here).  FCRA creates obligations both on CRAs preparing criminal background reports and on employers using them.

Among the duties of CRAs compiling criminal background reports for employers are the following:

  • CRAs may not report arrests or other adverse information (other than convictions of crimes) which are more than seven years old, provided that the report does not concern employment of an individual who has an annual salary that is $75,000 or more.   15 U.S.C. §§ 1681c(a)(5), 1681c(b)(3).
  • CRAs must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b).
  • Elements of cause of action: (1) Inaccurate information in report; (2) inaccuracy due to CRA’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) consumer suffered injury (can include emotional injury); and (4) injury was caused by inaccurate entry.  Crane v. Trans Union, 282 F. Supp. 2d 311 (E.D. Pa. 2003)(Dalzell) (citing Philin v. Trans Union Corp., 101 F. 3d 957, 963 (3d Cir. 1996)).
  • A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the CRA must maintain strict procedures to insure that the information it reports is complete and up to date.  15 U.S.C. §1681k.

“Ants under the refrigerator”

The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv.  In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act.   (See our recent 50-state survey of record-closing laws, with their intended effect.)


 

You probably are wondering, “What is she talking about, with a subject line like that?”  The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders.  I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.

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Major new federal awards support second chance advocacy

Earlier this week the U.S. Departments of Justice and Labor made two major awards to the Council of State Governments (CSG) to support the development of resources on collateral consequences and second chance programs.  The awards aim to build capacity within the advocacy community to assist those seeking restoration of rights and status nationwide.

The first award is a $4.6 million contract awarded by the Labor Department for the development of the National Clean Slate Clearinghouse, a federal initiative first announced by President Obama last November.  The Clearinghouse is intended to “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”

The second award is a $5 million grant from the Bureau of Justice Assistance to support the ongoing work of the National Reentry Resource Center (NRRC), a project developed by CSG in 2011 with federal funding earmarked in the Second Chance Act of 2007.  One exciting aspect of that award is that it will bring the National Inventory of the Collateral Consequences of Conviction (NICCC) into the NRRC fold.

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Law firm steps up to aid reentry

Recently I was speaking with Matt Benjamin, a lawyer at Gibson, Dunn & Crutcher LLP in New York, who told me about a very important pro bono effort that he and his colleagues at the firm launched two years ago to serve clients in the “Alternatives to Incarceration” programs of the U.S. District Court for the Eastern District of New York.  While the clients are generally represented in their criminal cases by public defenders, they frequently need help with a variety of civil issues, from employment and housing to immigration and family law issues.

Because I think this path-breaking effort should serve as a model for other law firms and law schools around the country — just as the Eastern District’s ATI programs should serve as a model for other federal courts — I wanted to provide more information about it here.

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Bids Sought for National Clean Slate Clearinghouse

Last November President Obama announced plans to create a National Clean Slate Clearinghouse, a joint project between the Departments of Labor and Justice that would “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”  In late February the Labor Department announced plans for a large-scale contract to establish the Clearinghouse, and sought information from likely bidders.  Since then, we have been curious about what the scope of the Clearinghouse project would be. Now we know.

This past Monday the Department of Labor issued an official solicitation for bids to develop the Clearinghouse, with the following general overview of the project:

The Clearinghouse will: 1) gather content, launch, host and update a national website that provides, among other things, state-by-state information on sealing, expungement, and other related legal services that lessen the negative impact of having juvenile and criminal records; and 2) develop tools and provide technical assistance to reentry service providers and legal aid organizations on how to use and expand access to sealing, expungement, and other legal services. The Clearinghouse will disseminate information in the area of record sealing and expungement, pardons, certificates of rehabilitation, correcting inaccurate juvenile and criminal records and other strategies to diminish the often lifelong economic and social consequences associated with having a juvenile or criminal record. In addition, the Clearinghouse will provide guidance on the removal of other employment barriers that do not provide a public safety benefit.

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Federal expungement case argued in court of appeals

On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I).  At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”  The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here.

The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case.  The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances.  No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it.  At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction.   That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue.

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50-state guide to expungement and sealing laws

The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.

The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise.  We hope these resources will prove useful in that effort.

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Monster and other job sites sued for excluding people with convictions

naacp_logo_rgb-copyA New York City chapter of the NAACP filed a class action suit last month against a number of employers and prominent online job sites, claiming that job listings explicitly barring applicants with felony convictions violate city and state law. Industry giants Monster, Indeed, and ZipRecruiter are among the defendants. Accompanying the complaint are listings from those sites that seek IT engineers and administrators, exterminators, and couriers, all of which make it clear that those with felony convictions (and in one case even arrests) need not apply.

The suit was brought under the New York City Human Rights Law, which provides a means of enforcing employment discrimination prohibitions in Article 23-A of New York State law. Article 23-A forbids employers from rejecting applicants because of their criminal convictions without first affording them an individualized assessment (unless employment is barred by law).

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Canadian travel restrictions based on criminal record

Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry.  This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada.

Were you convicted?

If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.”  Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible.

Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility.  A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act.

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50-state survey of relief from sex offender registration

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more

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