Background Checks: What Are My Employment Rights?

June 9, 2017 - Employment background checks can be an unnerving experience. Yet, employers are increasingly requiring new job applicants and current employees to submit to them, often in the form of criminal background checks and credit history checks. The Fair Credit Reporting Act (FRCA) provides clear protections to both current and prospective employees who are required to undergo background check screening. Employers and the companies that compile background information must follow specific rules when conducting checks to ensure compliance with the FCRA and protect employees’ rights. Here are answers to some frequently asked questions about background checks.

I was just fired because of a criminal background check. What are my rights?
First, whether you are a current employee or seeking a new position, an employer must ask for and receive your written consent before conducting a background check. You are not legally required to consent to a background check, but, if you are applying to a job and you do not consent, the employer may reject your application.

Second, because background check reports often contain inaccurate information, the FCRA requires an employer to make certain disclosures to you and notify you of your rights before taking any adverse action based on the report. Specifically, the employer must provide you with: (1) a copy of the report, and (2) a “notice of rights” that contains the following:

  • your legal rights under the FCRA and a notice of intent to take adverse action, also known as Pre-Adverse Action;
  • the name, address, and telephone number of the consumer reporting agency (CRA) that provided the report to the employer;
  • a statement that the CRA did not make the adverse employment decision and is not able to explain why the decision was made;
  • a statement setting forth the right of the applicant or employee to obtain a free background check report from the CRA if the applicant or employee makes a request within 60 days; and
  • a statement setting forth the right of the applicant or employee to dispute directly with the CRA the accuracy or completeness of any information contained in the report that the CRA provided to the employer.

You must be given an opportunity to dispute any information contained within your background report that you believe is inaccurate or misleading.

What should I do if there are inaccuracies in my background check report?
Contact the CRA that prepared your background report immediately and submit a written dispute. The CRA’s name, address, and telephone number should be included within the Pre-Adverse Action Notice from your employer or prospective employer. The CRA, not your employer or prospective employer, prepared the report and is the only party obligated under federal law to correct the inaccuracies. Upon contacting the CRA, ask what procedures it has in place for disputing information in its reports and follow them accordingly. Further, it is highly recommended that you submit your dispute in writing and keep a copy of the dispute for your records. Your written dispute should: (1) specifically inform the CRA of the inaccuracies contained within your report; (2) explain why the information is inaccurate; and (3) include any documentation or court records you may have or can obtain that confirm the inaccuracies. Finally, your dispute letter should conclude with a request that your report be corrected immediately and that a corrected copy of your report be sent to you and your employer or prospective employer.

How long does the dispute and reinvestigation process take?
Under the FCRA, the CRA has 30 days to reinvestigate and address your dispute. Most CRA’s complete their reinvestigation within 1-2 weeks from the date the dispute is received.

Should I contact my employer or prospective employer after submitting my dispute?
Yes. You should call or email your human resource department, or whomever you have been in contact with during the interview process, and inform them that there are inaccuracies within your background check report and that you are working with the CRA to correct the report. CRAs are required by federal law to communicate with the employer after receiving a dispute and send a copy of the corrected report to your employer or prospective employer.

If the CRA fails to correct inaccuracies within your background check report, you should contact a lawyer immediately to discuss your rights.

Protect Your Employment Rights
If you believe you have been denied employment or been wrongfully discharged because of a background check, or suspect a background check was performed without your consent, our Minneapolis employment lawyers want to hear from you. Baillon Thome Jozwiak & Wanta LLP is dedicated to protecting the rights of employees and has substantial experience representing employees in FCRA litigation. For more information about the Fair Credit Reporting Act and your rights, contact us at 612-252-3570 or click here for a free initial consultation.

Additional information about background checks may be found on website at the links below.