What can be included on my employment-related background check?

Employment-related background checks (also called “consumer reports”) can legally provide a wide variety of information about an individual’s background and life history. Background checks frequently include information regarding criminal background, educational, employment, address, and, sometimes, credit, history.

It is common for employment-related background checks to include information on whether an individual has a criminal background. If the individual does have a criminal background, the report the employer receives will include details on that criminal history. Those details may include:

  • Jurisdiction (i.e., the court where the case was held)
  • Charges brought
  • Charge level (misdemeanor, felony, etc.)
  • Charge date
  • Disposition (i.e., guilty, dismissed, deferred)
  • Disposition date
  • Sentence

Consumers commonly believe that it is illegal for an employer to ask, or learn about, anything older than seven years. This is an unfortunate myth. In general, background check companies (“consumer reporting agencies” under the Fair Credit Reporting Act) may not include any “adverse,” or harmful, information which pre-dates a report by more than seven years. See 15 U.S.C. § 1681c. However, convictions for crimes may be reported forever. Id.

It is illegal for consumer reporting agencies to include any of the following on a consumer report:

  • Information about an arrest which happened more than seven years ago;
  • Information about criminal charges which are more than seven years old and were dismissed;
  • Information about criminal charges which are more than seven years old and which resulted in a deferred adjudication or other diversion program;
  • Any information about bankruptcies that are more than ten years old; and
  • Any other adverse information, other than convictions, which is more than seven years old.

In addition to criminal background information, many employers also use consumer reporting agencies to verify an individual’s educational, employment, and sometimes even residential address, history.

If an employer is going to conduct personal interviews as part of obtaining a background check on an individual, the report is then called an “investigative consumer report,” and the employer must make a special disclosure to the person on which the report is obtained. Any public record information in such a report must have been verified within the last thirty days and must be accurate, complete, and up to date. 15 U.S.C. § 1681d(d)(3).

Some consumer reporting agencies also do a traditional credit check for employment-related purposes. Different states regulate whether, and sometimes when, an employer can use credit information in a background check for employment purposes.

If you believe a background check company, or a credit bureau, has included improper, mistaken or inaccurate information about you in a background check or credit report, please contact Berger Montague. The lawyers at Berger Montague believe consumer and credit reporting agencies must be held accountable when they make mistakes in their reports. The lawyers at Berger Montague have litigated numerous class action cases in which consumer reporting agencies were held accountable for including improper information on background checks, including, among others, Ernst v. DISH Network, LLC, Sterling Infosystems, Inc., No. 12-cv-8794 (S.D.N.Y.) (settled for $4.75 million with consumer reporting agency defendant), Haley v. TalentWise, Inc., No. 13-cv-1915 (W.D. Wash.) (settled for $1.5 million with consumer reporting agency defendant), and Avila v. NOW Health Grp., Inc., Argus Services, Inc., No. 14-cv-1551 (N.D. Ill.) (settled for $170 per class member with consumer reporting agency defendant).

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