If an employer intends to terminate a current employee or refuses to hire an applicant because of information contained in a criminal or consumer background report, there are certain requirements it must follow under the Fair Credit Reporting Act. First, employers cannot perform an employment background check unless they make a clear and conspicuous disclosure in writing to the consumer before the report is procured. The disclosure must be in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and the consumer has authorized in writing.
Before an employee or applicant can be subject to an “adverse action” the employee must be provided a copy of the report and must be provided advance notice that an adverse action may be taken because of information contained in the report. The purpose of this provision is to allow employees and applicants time to review the report and to correct or explain any errors or misleading information. The employer must also provide an employee or applicant with a notice of their rights under the FCRA, in a disclosure.
If an employer does take an adverse action based on the background check, they must provide written notice of the same, in what is known as the “Final Adverse Action.”
It is important for employees to review background checks prepared about them because they may contain false or misleading information. In Minnesota, employees and applicants have the right to request their background report at the time they consent to having the report prepared. Too often, individuals may not closely review their background reports and suffer an adverse employment action because of false or misleading information, or because information was reported that is prohibited from disclosure by law. And, individuals may be unaware that not all criminal matters can be reported in a criminal background report. Non-convictions (i.e. arrests, criminal charges) are, in most instances, prohibited from being disclosed on a criminal background report if they occurred more than seven years before the date of the report. Certain petty misdemeanors may also be prohibited from being disclosed on a criminal background report if they occurred more than seven years prior to the date of the report.
Our consumer protection attorneys have helped individuals receive compensation for violations of the FCRA by employers. On an individual basis, and through class action lawsuits, we have successfully compelled companies to change their policies to conform with the law and to compensate consumers for violations of the FCRA.