EMPLOYMENT BACKGROUND CHECK REPORT ERRORS
In a digital age when information about job applicants and employees are swiftly compiled from numerous databases, regulations to ensure the accuracy of these employment background check reports is quintessential. Under the Fair Credit Reporting Act, background check companies are required to use reasonable procedures to assure maximum possible accuracy when procuring employment background check reports. In addition, employers are required to obtain authorization and give notice in a stand alone document consisting of only of the disclosure, before procuring a background check report for employment purposes. Furthermore, when using information in the background check report to take negative action against employees or job applicants, employers must timely provide pre-adverse action notices and adverse action notices.
The following should generally not be on the background check report.
1. Mixed file. (i.e. record of person other than you)
2. Incomplete information about a case.
3. Arrests that did not lead to conviction.
4. Crimes that have been expunged or sealed.
5. Misleading information. (i.e. single charge listed as multiple times)
6. Adverse driving history that are older than 7 years.
7. Misclassified offenses. (i.e. misdemeanor reported as felony)
8. Arrests for which you have successfully completed a diversion.
9. Certain minor marijuana arrests that are older than 2 years.
10. Convictions that are older than 7 years. (currently being subject to constitutional challenges)
Obtaining and Using Background Check Reports For Employment Purposes
In most cases, employers or potential employers have to notify a job applicant or employee and obtain his or her written permission before the employer conducts a background check. Further, an employer or potential employer is required to provide an applicant or employee, a written disclosure notice which is "clear and conspicuous" indicating that the employer may obtain a background check report. In this written disclosure authorization section or form, there must be a Check-Box that an applicant or employee can mark to request a copy of any report the employer obtains.
An employer or potential employer should not consider mistakes, errors, inaccuracies, arrests not leading to convictions, or expunged convictions when deciding to hire, demote, or fire an applicant or employee.
Further, if the employer or potential employer intends to take any adverse action (i.e. not hire, demote, or terminate) based on the applicant's or employee's background check report, it is required to send him or her a copy of the background check report and a summary of rights under the Fair Credit Reporting Act, and give the applicant or employee a reasonable opportunity to dispute the information on the background check report before the employer takes adverse action. If there are any mistakes, errors, inaccuracies or information that should not be on the background check report, the applicant or employee has the right to dispute his or her background check report with the employer and the background check company (often called a "consumer reporting agency" or "CRA").
If an employer or potential employer actually takes adverse action (not hire, demote, or fire) because of any information on an applicant's or employee's background check report, the employer is required to send a second notice informing the applicant or employee that adverse action has been taken based on the background check report.
If your background check report contains inaccurate, incomplete or misleading information, or if you believe that you have been wrongfully denied employment by an employer in California, due to a background check report, please contact the office.