Criminal Background Checks and Protection Under the Fair Credit Reporting Act

By Julie Cortes / Updated By Katherine Hollingsworth

Most employers use criminal background checks when hiring a person for a job. An employer is allowed to use a criminal background check but must follow certain rules. The Fair Credit Reporting Act (FCRA) tells employers what they can and cannot do when using a background check.

An employer must tell the job applicant that it has plans to do a background check. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. The employer must give this notice before it does the background check. Also, the employer must get the applicant’s written permission to do the background check.

If the employer decides not to hire the applicant based on the background check, it must do two things. First, the employer must give the applicant a copy of the background check. Second, the employer must give the applicant a copy of the Federal Trade Commission’s “A Summary of Your Rights Under the Fair Credit Reporting Act.” These two documents must be given to the applicant before denying employment. This gives the applicant time to correct any wrong information in the background check.

If the employer moves forward with denying employment, it must tell the applicant (verbally, in writing, or electronically):

• That the applicant was rejected because of information in the background report;
• The name, address and phone number of the company that issued the report;
• That the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
• That the applicant has the right to dispute the accuracy or completeness of the report and get an additional free report from the background check company within 60 days.

The background check company can report convictions, no matter how old. They should not report convictions that have been sealed or expunged, but they do not always update their records timely. Arrests, generally, cannot be reported if they are more than seven years old.

There are many common mistakes that background check companies report to employers. For example, the information may be wrong, or the information may be about someone else with the same name or birth date. The background check company may also overreport information by stating: “There is a conviction with Mr. X.’s name. This may or may not be your Mr. X.”

If you are applying for a job and you learn the employer obtained an incorrect background check report, you should dispute the inaccuracies. More information about your rights is available from the Federal Trade Commission: Employer Background Checks and Your Rights | Consumer Advice (ftc.gov).

This article was published in Legal Aid's newsletter, "The Alert" Volume 39, Issue 1, in May 2023. See full issue at this link: “The Alert”- Volume 39, Issue 1 – Legal Aid Society of Cleveland.