Twenty years ago, criminal record background checks for employment were rare. Today, the easy accessibility of criminal records on the Internet, and the post-September 11^th culture of heightened scrutiny, have contributed to a sharp increase in background checks of job candidates.  If you’re applying for jobs in most industries, expect employers to ask about a criminal record at some point in the hiring process—and expect many of them to run a background check on you.

It’s a harsh reality for an estimated one in four U.S. adults who have some type of criminal record.  Unfortunately, any involvement with the criminal justice system—even having minor or old offenses—could become a job obstacle for these 70 million Americans. Even if you’ve avoided a run-in with the law, you could still find yourself being unfairly screened out for a job due to an erroneous background check report. With thousands of private background check companies across the country that have varying levels of reliable information, inaccuracies in these reports are far too common.

Unknown to many job candidates, private background check companies and the employers relying on their reports are regulated by a federal consumer protection law called the Fair Credit Reporting Act (FCRA).  Although more well-known in the credit report context, FCRA also applies to companies that produce criminal background check information, and gives job-seekers a number of protections.

Here are a few highlights of FCRA as applied to criminal record information reports:

• Background check companies may not report arrests older than seven years and must have procedures to ensure accuracy of the information provided to employers.
• Employers must obtain authorization from the job applicant before getting the report.
• Before the background check report can be used to deny a job, the employer must provide a copy of the report to the job-seeker.
• The job applicant also has the right to dispute the accuracy of the report.

Despite the letter of the law, advocates representing workers have identified background check reports that are riddled with errors. The consequences are devastating for workers unfairly denied job opportunities because of an inaccurate record, particularly in a tight labor market.  Some common errors include the reporting criminal record information of another person with a similar name, failure to include the final outcome of an arrest, reporting a stale arrest record, or reporting an item multiple times giving the appearance of a lengthy record.  The National Consumer Law Center’s Broken Records captures many of the common problems.

FCRA is enforced administratively by the Federal Trade Commission, but “The ‘Wild West’ of Employment Background Checks” hasn’t been tamed.  With limited regulatory accountability, advocates have turned to litigation against some of the largest background check companies for FCRA violations.  Advocates have also urged the federal Consumer Financial Protection Bureau to take an interest in this industry because of the impact of widespread noncompliance with FCRA on consumers.

Another promising strategy is to tackle the issue at the state level.  States could enact limitations on reporting of certain criminal record information, take steps to increase accuracy of records, and ensure disposition information is processed efficiently.  For example, California‘s Investigative Consumer Reporting Agencies Act (ICRAA) restricts the reporting of convictions older than seven years. And recently, Indiana made regulation of background checkers a part of its comprehensive 2013 expungement and sealing scheme.  For more ideas on a state reform agenda, see this report.

 

CCRC STAFF NOTE:  The provisions of the Federal Fair Credit Reporting Act are described in greater detail, and court cases collected, by Sharon Dietrich in §§5:14 to 5:31 of Love, et al., Collateral Consequences of Criminal Convictions (West/NACDL 2013).

 

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