Employees Take a Stand – Protections Under the FCRA for Persons with Criminal Records

March 27th, 2014

Did you know that a criminal background check generally qualifies as a “Consumer Report” under the Fair Credit Reporting Act (“FCRA”)? Did you know that you have certain protections regarding how an employer uses a Consumer Report in the application process or while you are employed? Under the FCRA an employer must follow certain procedures before it can use a Consumer Report to deny your application, terminate you, or take some other negative job action. If you are in a situation where a consumer report might harm your employment prospects, it is important to understand your rights.

Before getting and using a consumer report (i.e., criminal background check), an employer must:

  • Get written consent from the applicant or employee;
  • Tell the employee in a separate stand-alone written document that the report may be used to affect an employment decision; and,
  • Provide a certification of compliance to the company that is conducting report

Then, before an employer can take any action against an applicant or employee, it must:

  • Provide a copy of the report to the applicant or employee;
  • Give advanced notice of the intent to take adverse action based on the report;
  • Allow the employee the opportunity to review the report and contest the accuracy; and,
  • Provide a copy of “A Summary of Your Rights under the Fair Credit Reporting Act” to the employee.

If you have had a consumer report used against you illegally, you can bring a lawsuit, but it must be within two years of the violation. An employer who negligently fails to comply with these laws may be found liable to you for the damages caused and for the costs of any resulting court action, including attorneys’ fees. If the violation is willful or deliberate, a court may also award punitive damages.

Managing your career path is hard enough without running into surprise detours. Knowing your rights under FCRA can help you keep moving forward.

 

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