You lost a job due to an error, mistake, or inaccuracy on a background report. What should you do next?
Employers order background checks from companies called consumer reporting agencies. These reports can contain a wide variety of information including your criminal history, credit information, residential history, employment history, educational history, and other information. The Fair Credit Reporting Act regulates employment background reports, and requires that consumer reporting agencies use “reasonable procedures to assure maximum possible accuracy” of the information in their reports. Too often background reports are inaccurate, and can cause an employer to deny you a job due. If this happens, here are steps to take:
Step 1: Did you authorize the employer to obtain a background report about you?
An employer must obtain your authorization before it can order a background check. The authorization form is typically contained in the application paperwork. But sometimes employers skip this critical step. If you did not authorize the background report, then the employer has violated the FCRA.
Step 2: Obtain a copy of the background report from your employer or from the background reporting company.
If you lost a job due to a background check, the Fair Credit Reporting Act requires the employer to provide you with a copy of the background report, and this must occur before they make a final employment decision. This is called the pre-adverse action process. The “pre” is important. It means the employer must give you the report before taking an adverse action against you. The FCRA affords you the opportunity to review your background check, and dispute or explain any inaccuracies or inconsistencies before an employer can rescind a job offer.
What if your employer refuses to give you a copy of the background report? This violates your FCRA rights. If you employer has terminated your employment or rescinded an employment offer based on a background check and failed to give you the report, then you have a legal claim against the employer.
You can also order the background report directly from the background check company. The FCRA requires the background check companies to provide you with a copy of your report. For more information about how to order your free consumer report from an employment background check company, click HERE.
Step 3: Review the background check for errors.
Employment background checks can contain a variety of errors:
- Mixed Files. A mixed file occurs when a different person's information appears on your background report. For example, you may find criminal records that do not belong to you on your background report.
Incorrect Dispositions. It is inaccurate for a background report to report incorrect criminal disposition information. For example, reporting “guilty” instead of “not guilty”, or “pending” rather than “dismissed.”
Incorrect Severity. It is inaccurate to report the wrong severity for a criminal charge or conviction. For example, reporting a misdemeanor as a felony.
Sealed or Expunged Records. Criminal background reports cannot include sealed or expunged criminal records.
Obsolete Criminal Records. Non-conviction criminal records cannot be reported for more than seven years under the Fair Credit Reporting Act. This means arrest records, criminal charges, complaints, indictments, and other non-conviction information cannot be reported if it is older than seven years. Criminal convictions can be reported indefinitely under federal law.
Duplicate Criminal Records. A criminal record should only appear once on your background report. When the same record appears multiple times it makes a person's criminal history look longer than it is. This is misleading and inaccurate, and can damage your reputation.
Step 4: Dispute with the background check company.
Once you find the inaccurate information in your background report, you need to dispute it with the background check company. Your dispute should clearly identify what is inaccurate on the report. Many background check companies provide forms that you can use to submit a dispute. Alternatively, you can draft your own dispute letter. We recommend sending your dispute via certified mail. For more information about how to dispute your background or credit reports, click HERE.
The FCRA requires the background check company to reinvestigate your dispute and send you the results of its reinvestigation within 30 days.
Contact an Attorney.
If you have lost a job due to an error, inaccuracy, or mistake on an employment background report, you should speak with an attorney about your rights. You can do so at any point in the process described on this page. Even if the background report company fixes the inaccuracy, you've still been harmed. The background check company might have caused you to lose a job. It might have caused your start date to be delayed, which means you are not earning income even though your bills are still coming due. The background check attorneys at Weiner & Sand have decades of experience litigating FCRA cases against employers and consumer reporting agencies. We have a nationwide practice and do not charge for consultations.