Using Criminal History Information May Violate the Rules of the FCRA

Madeleine Jones
May 7, 2018

a criminal background check form, fcra attorneyWhile it’s not illegal for employers to require a background check on a job applicant or employee, it is important that they comply with the Fair Credit Reporting Act and other federal rules and regulations protecting such employees and workers from discrimination. It’s not unusual to find employers considering the background of job applicants and employees when making decisions about hiring, promotion, retention, and reassignment. Most employers will scrutinize a prospective worker’s education, work history, medical history, criminal record, or even their use of social media.

Criminal Background Checks under the FCRA

The FCRA limits employers’ ability to conduct a criminal background check before obtaining appropriate authorization from the employee or applicant in question. Moreover, the authorization form needs to be isolated from the job application and not require the employee to waive any rights. If a company engages a private investigator to perform a criminal record on a job applicant or existing employee, the FCRA rules will apply irrespective of the written report. However, the Act doesn’t apply to criminal background checks performed by an employer’s personnel as part of their job description.

Penalties under the FCRA

Non-compliance with the FCRA rules renders employers liable for punitive damages, actual damages, costs as well as attorney fees. Actual damages can range between $100 and $1,000. Punitive damages are set at the discretion of the court; there is no set limit. Employers often hire an FCRA attorney to help them stay updated on the latest FCRA guidelines and to remain compliant.

Hiring mistakes can be very expensive to fix and so is tasking the existing employees with sensitive duties. It is, therefore, not a wonder to see companies beginning to conduct or expand their background searches on new applicants and existing employees. It is, however, critical for employers to comply with FCRA when utilizing consumer reporting agencies to conduct criminal background checks. Failure to comply with the requirements of the FCRA often carries serious consequences.