Helping Individuals with criminal records Reenter through Employment

Employer Use of Consumer/Credit Reports to Obtain Criminal Record Information

Many employers are not authorized to fingerprint their job applicants, but have other means of getting access to their criminal records. Employers may use consumer report information when considering employment applications as long as they comply with the federal Fair Credit Reporting Act (FCRA) (15 U.S.C. §§1681 et seq.). Although the FCRA is designed to promote the accuracy, fairness, and privacy of information in the files of consumer reporting agencies (CRA), criminal record information is often reported with erroneous information. A CRA is any person(s) who, for monetary compensation, regularly engages in the practice of investigating and evaluating information to provide reports to employers for the purpose of evaluating an individual for employment, promotion, assignment or retention as an employee.

The FCRA outlines specific rights to individuals. State laws may provide additional rights; so you should contact your State’s Attorney General’s office for more information.

  • Any employer who uses information from a CRA to deny employment must inform the job applicant and provide the name, address and phone number of the CRA that provided the consumer report.
  • A CRA must give the information contained in an individual file upon request to that individual, and also provide a list of everyone who has requested it recently. There is no charge for the report if an employer has taken action against the individual because of information supplied by the CRA and if the request occurs within 60 days of receiving notice of the action.
  • If a file contains inaccurate information, the CRA must investigate the item(s) in question and provide a written report of the investigation to the owner of the file and a copy of an amended report if the investigation results in any change. If no change is made to the disputed item, the person may submit a statement for their file.
  • Inaccurate information must be corrected or deleted with 30 days of being disputed.
  • If an item is disputed at the source, the source may not report the information to a CRA without including a notice of dispute.
  • Consumer reports may not contain adverse information (including arrests that did not lead to conviction) more than seven years old with the following exceptions:
  • bankruptcies may be reported for ten years;
  • convictions may be reported without any time limitation; and
  • there is no limitation on reporting adverse information older than seven years if the individual’s annual salary is $75,000 or more.
  • Access to a file is limited to people with a need recognized by the FCRA, i.e. an employer.
  • A written consent must be obtained by a CRA before it gives out any information to an employer or prospective employer. Notification language that appears on an application for employment is not acceptable; written authorization from the individual to whom the report relates, in the form of a “stand-alone document,” must be used for a consumer report to be obtained for employment purposes.

Many states and localities have passed laws that enhance protections for consumers (i.e. job seekers). For example, some states limit the kind of conviction records that can be reported or reduce the look back period, or changed other provisions that expand upon the protections offered under Federal FCRA. Therefore, employers must always check their state and local employment statutes to verify what they can and cannot consider when conducting criminal record background screens.