Do I have a right to know when a background check is requested?

Yes, if it is not performed by the employer. The background check must be prepared by an outside company like NarrowSearch-- a "consumer reporting agency" or business that "for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in ... assembling ... information on consumers for the purpose of furnishing consumer reports to third parties." (FCRA §603f)

Under the FCRA, the employer must obtain the applicant's written authorization before the background check is conducted. The authorization must be on a document separate from all other documents such as an employment application. InCalifornia, at the time an employer obtains permission for a background check, the applicant or employee should also be told that he or she may request a copy of the report. The FCRA, in contrast, says the subject is entitled to a copy of the report if a pre-adverse notice is given.

Under federal law, if the employer uses information from the consumer report for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion - it must take the following steps:

• Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure." This includes a copy of the report and an explanation of the consumer's rights under the FCRA.
  
  
• After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain the name, address, and phone number of the employment screening company, a statement that this company did not make the adverse decision, rather that the employer did, and a notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

Modified disclosure and adverse action procedures under the FCRA (§604(b)(3)(B)) apply to positions subject to U.S. Department of Transportation (DOT) regulations such as truck drivers. The DOT has independent authority to set qualifications for workers in transportation industries.  (49 USC §31502)

Can a background check report include a case that was expunged?

According to the FTC, it should not. In August, 2012, the agency fined one background screening company $2.6 million for, among other things, reporting criminal records that had been expunged. In addition, the FTC charged the company with failing to follow other FCRA provisions, including failure to provide consumers with a copy of their background check report.

Often equated to the sealing or destroying of legal records. Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. But the records may not completely "disappear" and may still be available to law enforcement.

I am applying for a job in a profession that is required by law to perform background checks, such as in law enforcement, childcare, or a hospital. Will this affect my rights under the Fair Credit Reporting Act?

Maybe. When a specific law requires a background check, that same law usually outlines the rights employees have. These rights may not necessarily follow the Fair Credit Reporting Act, the background screening law that governs "consumer reports."  However, if a third-party screening company is hired, the FCRA would apply.

Law enforcement agencies or state licensing authorities may have direct access to state and federal criminal records databases, which many private employers do not have. A government-run database is not a consumer reporting agency and is not subject to the FCRA. Whether you have a right to get your report or make corrections may be spelled out in the background check forms you signed or perhaps on the agency's Web site.

However, individuals are generally allowed to access their own criminal records files maintained by a state or federal agency. To access your state’s criminal records data files, contact your state Attorney General. The federal Privacy Act also gives you the right to request records maintained about you. To check federal criminal records, contact theFederal Bureau of Investigation.

I am an independent contractor. What are my rights if the employer wants to do a background check?

The Federal Trade Commission staff has issued a couple of advisory opinion letters about contractors and the Fair Credit Reporting Act.

Allison Letter.  This FTC advisory opinion says that a trucking operation that uses consumer reports to evaluate whether to hire independent owner operator truck drivers must comply with the provisions of the FCRA pertaining to consumer reports, including the disclosure and authorization provisions.

The opinion goes on to say that even a homeowner who is considering hiring an individual to perform services for the homeowner is indeed required to comply with the FCRA when obtaining a "consumer report" on that individual. Like any employer, the homeowner must abide by the applicable disclosure and authorization provisions like any other employer.

Solomon Letter. This FTC advisory opinion says that  the term "employment purposes," as used in the FCRA, should be interpreted broadly. 

Does a nonprofit organization have to follow the FCRA when screening volunteers?

Yes, if the investigation is conducted by a consumer reporting agency. Some nonprofit organizations are allowed direct access to state or federal criminal data bases. This is especially true for those organizations where employees and volunteers work closely with children, the elderly, or the disabled.

Does the FCRA require that I receive notice and give authorization at any time a background check is obtained?

The FCRA allows a "blanket" authorization. This means a one-time notice and authorization is sufficent to allow the employer to obtain reports at any time during employment.  The requirement to get authorization may, however, be different under state law. In California, for example, notice and authorization is required "at any time before a report is procured." (California Civil Code Sec. 1786.16)

May an employment report include medical information?

The FCRA imposes specific obligations on employment screening companies. Medical information supplied for employment purposes requires your specific written consent and must be “relevant” to the employment. An employer may also ask you to take a pre-employment physical. If so, the Americans with Disabilities Act requires such requests be made only after a job offer.

How does the FCRA fall short?

The federal law has two significant loopholes. First, if the employer does not use a third-party screening company but, rather conducts the background check itself, it isnot subject to the notice and consent provisions of the FCRA.

Second, the employer might tell the rejected applicant that its adverse decision wasnot based on the contents of the background investigation, but, rather that the job pool was so exceptional that it made its hiring decision based on the fact that there were individuals more qualified than the applicant.

In both of these situations, the applicant would not have the ability to obtain a copy of the background check to find out what negative information it contained. 

Where do I go to complain about an employer or a background screening company that does not follow the FCRA?

Complaints should be filed with the Federal Trade Commission. Your state may also have a law that applies to employment background checks. In that case, file a complaint with your state Attorney General. Contact for state Attorneys General can be found through the National Association of Attoneys General. 

In California, complaints should be submitted to the Attorney General's Public Inquiry Unit, (916) 322-3360 or Toll Free in California (800) 952-5225.

The FCRA includes a private right of action, that is consumers themselves may sue for violations. Attorneys who specialize in employment law may be located through the National Employment Lawyers' Association. State and county bar associations are another resource for referrals.