If you believe that an employer has run a background or credit check on you without your consent, you may have a right to recover damages under the Fair Credit Reporting Act (FCRA) – especially if the employer declined your application or terminated your employment based on information from that check.
Employers routinely use background checks and credit reports to assess job applicants or current employees. However, employers do not always run these checks lawfully. Most commonly, employers run checks on employees without first giving the employees proper notice. Failing to give an employee proper notice of an impending check is not only frustrating and hurtful to the employee, but it is also a violation of the FCRA.
The FCRA was developed to protect employees and job applicants from employers or potential employers who unlawfully perform a background or credit check through a third party, and when it is violated by an employer, any affected employees or applicants are entitled to compensation.

Under the FCRA, employers have multiple obligations to adhere to when running background or credit checks on employees or job applicants. These obligations mandated by the FCRA include both responsibilities and restrictions, which are outlined below.

1. Employer Obligations
   If an employer wants to run a background check or credit report on a potential or current employee, the FCRA states that the employer MUST:
   • Inform the employee of intent to perform the check prior to the check.
   • Obtain proper written consent from the applicant or employee prior to performing the check.
   • Only use the information from the check for employment purposes.
   • Provide the employee an opportunity to dispute inaccurate, incomplete, or outdated information
   • Inform the employee if an adverse action taken against the employee was based on information in the check
   • If you have been subjected to a background or credit check by an employer or prospective employer who failed to fulfill any of the responsibilities listed above, there is a good chance you have a solid claim for an FCRA violation. However, proving these violations are often fact-dependent, so to know for certain if your employer actually committed one of these violations, it is best to consult with an employment law attorney who is experienced in handling FCRA matters.
2. Content Restrictions for Credit Reports and Background Checks
   On top of the FCRA requirements an employer must obey when seeking to run a background check on a current or potential employee, the FCRA also lays out restrictions on the types of content that the report MUST NOT CONTAIN:
   • Misleading or false information included by mistake
   • Information from the record of a different individual other than the employee
   • Incomplete information about a prior case or charge
   • Negative driving history older than 7 years
   • Crimes that have been sealed or expunged
   • Convictions older than 7 years
   • Arrests older than 7 years
   • Arrests for certain minor marijuana infractions
   • Arrests that did not end in a conviction
   • Arrests for which the employee already successfully completed diversion

Many of the above content restrictions are all but ignored by employers and third-party reporting services alike. If you believe any of this information was included on a background check or credit report about you, your rights under the FCRA were violated and you likely have a viable FCRA claim. However, as with proving employer violations, the facts are crucial when proving that one of the above items was mistakenly included on a check about you. This is why it is so important to speak with a lawyer experienced in handling these types of cases to determine if you were indeed subjected to an unlawful check

The attorneys at Shalom Law have years of experience protecting the rights of employees and job applicants who have been unlawfully subjected to a background check or credit check. We thoroughly understand the requirements of the Fair Credit Reporting Act and can easily spot when an employer is failing in their FCRA responsibilities. Employers who violate the FCRA must be stopped, as is often the case that an employer who has run one unlawful background check has probably also ran other unlawful checks. At Shalom Law, we understand the pains that can come with being turned down for a job because the employer illegally dug through your past and saw something they didn’t like. We will protect and defend any and all employees subjected to these unlawful checks. If you believe an employer has subjected and refused to hire or terminated you as a result of a background check, contact our office immediately at (718) 971-9474.