Tag: Dietrich

First fair chance licensing reforms of 2024

Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants and licensees. In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws. The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project.

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Diversion pleas qualify as convictions under federal background check law

The federal Fair Credit Reporting Act (FCRA) prohibits companies engaged in criminal background screening from reporting records of arrests that are more than seven years old.  But since the 1990’s, there has been no time limit on reporting “records of convictions of crimes.” See 15 U.S.C. § 1681c(a)(2) and (5).  It might reasonably be assumed that criminal cases terminated in favor of the accused without a conviction (such as uncharged arrests, acquittals and dismissed charges) would fall into the first category, and so would not be reportable after seven years.  But we were recently alerted to a decision of the 7th Circuit from April that defined the term “conviction” in FCRA broadly to include any disposition involving a guilty plea, even if the charges are dismissed pursuant to a diversionary program with no resulting conviction under state law. In Aldaco v. Rentgrow, a background screening company reported to Rafaela Aldaco’s prospective landlord that she had pleaded guilty to a battery charge twenty years earlier.  As a result, the landlord rejected Aldaco’s rental application.  Aldaco conceded her guilty plea, but pointed out that the court had deferred proceedings while she successfully completed a brief supervision sentence, after which the court had dismissed the […]

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May background screeners lawfully report expunged records?

The following post, by Sharon Dietrich of Community Legal Services of Philadelphia, addresses the question whether reporting of an expunged or sealed case by a commercial background screener violates the Fair Credit Reporting Act.  Sharon is a national authority on FCRA as applied to criminal records, and we are pleased to reprint her analysis below.  The Fair Credit Reporting Act (FCRA) governs the accuracy of criminal background checks prepared by commercial screeners.  While there is little case law holding that the FCRA prohibits commercial screeners from reporting expunged or sealed cases, there is little doubt that this is the case. Two FCRA provisions are applicable to this issue. Commercial screeners must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b). A commercial screener 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 commercial screener must maintain strict procedures to […]

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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” […]

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Expungement in Pennsylvania explained

Pennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods.  No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia.   Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws.  The abstract follows:

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