HIDDEN ERRORS, REAL CONSEQUENCES – Navigating and Correcting Mistakes From A denied Background Check
Background Check Errors Can Significantly Impact Your Employment and Housing Prospects
Background checks play a crucial role in our lives, influencing employment, housing, and financial opportunities. Errors in these reports can lead to significant setbacks, from lost job opportunities to denied housing applications. Knowing your rights and how to address these errors is vital in safeguarding your future. Imagine finding out that a job offer was rescinded because your background check incorrectly showed a criminal record that wasn't yours. Such errors can be frustrating and damaging but are unfortunately common. Fortunately, a good background check attorney can help.
Identifying and Fixing the Blunders – Common Background Check Errors
Errors in background checks can take many forms, each with its own set of complications. Understanding these common errors and how they occur can help you – the consumer – better navigate and correct them.
Inaccurate Information
Mistaken identity or outdated information can lead to incorrect details in your report. You might discover that your background check includes criminal records of someone with a similar name from another state. This situation often arises due to clerical errors or incomplete data matching, where the background check company fails to accurately distinguish between individuals with common names. Such errors can be particularly problematic in industries with strict hiring standards, like healthcare or education.
Incomplete Records
Missing critical information, such as expunged records or recent updates, can create an unfair portrayal of your history. Suppose you had a minor misdemeanor expunged from your record years ago. However, your background check still shows this expunged record, impacting your job search and causing undue stress. Employers may view this outdated information as a red flag, leading to unjust consequences.
Mixed Files
Sometimes, your report may contain information from another individual with a similar name or background. Imagine being shocked to see a bankruptcy entry on your background check that belongs to someone else with a similar name. This mix-up can lead to complications in your financial applications, negatively affecting your credit score and your ability to secure loans or credit cards. Mixed files often occur due to errors in data entry or failure to cross-check identifying details like Social Security numbers.
Inaccurate Criminal Records
Incorrect or outdated criminal information can severely affect your chances of employment or housing. Even if you have never been convicted of a felony, your background check might mistakenly list a felony conviction due to a clerical error. This misinformation can result in you losing a job offer from a reputable company. Such errors are not only embarrassing but can also have long-term effects on one’s career prospects and personal life.
Outdated Information
Information that is no longer relevant or should have been updated can appear on your background check. For example, your background check might show an old address where you lived five years ago, causing confusion and delay in your mortgage approval process. Outdated information can be particularly problematic when accuracy and timeliness are critical, such as in applications for security-sensitive positions.
Mismatched Social Security Numbers
Errors in Social Security numbers can result in a mix-up of identities. You might find that your background check shows employment history for another person due to a one-digit error in your Social Security number, leading to potential issues with verifying your employment history. Such mistakes can cause significant disruptions in the verification process, potentially affecting job offers or financial transactions.
Incorrect Employment History
Errors in reporting past employment can lead to misunderstandings or missed job opportunities. Imagine your background check indicating you were terminated from a previous job, when in fact, you had left on good terms. This erroneous information jeopardizes your current job application process, causing unnecessary stress and possible job loss.
Mistaken Drug Test Results
Incorrect drug test results can have serious implications for job seekers. Suppose your background check includes a failed drug test that actually belongs to someone else, causing you to miss out on a job opportunity due to this mistaken result. Drug test errors can be particularly damaging in industries that require stringent substance use policies.
Legal Protections – Consumers Rights to Combat Background Check Issues
Navigating the complexities of background check errors can be daunting, but fortunately, there are robust legal protections in place to safeguard your rights. Both federal and state laws provide mechanisms to dispute and correct inaccuracies, ensuring that your background report reflects true and accurate information.
The Fair Credit Reporting Act (FCRA)
The FCRA is a federal law aimed to ensure the accuracy and privacy of your information in credit and background checks. It provides you with the right to dispute inaccuracies and obligates reporting agencies to correct errors.
Under the FCRA (15 U.S.C. § 1681n), consumers must be notified if information in their background check has been used against them. Violations can result in statutory damages ranging from $100 to $1,000 per violation, actual damages, and punitive damages in cases of willful noncompliance
The Investigative Consumer Reporting Agencies Act (ICRAA)
In California, the ICRAA provides additional protections to consumers, including consent disclosures and timely delivery of reports.
The ICRAA (California Civil Code § 1786) requires that you be informed about the nature and scope of the investigation being conducted. Violations of the ICRAA can result in actual damages, punitive damages, and statutory penalties up to $10,000 per violation, along with attorney’s fees.
California Consumer Credit Reporting Agencies Act (CCRAA)
This state law further protects California residents by regulating the activities of consumer reporting agencies. It mandates that credit reporting agencies follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
Under the CCRAA (California Civil Code § 1785), you have the right to know what is in your credit report and to dispute inaccurate or incomplete information. Violations can result in actual damages, including court costs and attorney’s fees, and in cases of willful misconduct, punitive damages up to $5,000 per violation.
California Labor Code
Specific sections of the California Labor Code also provide protections related to background checks for employment purposes.
Under California Labor Code § 1024.5, an employer cannot obtain a credit report for employment purposes unless the position falls under certain exceptions, such as managerial positions, law enforcement, or roles involving significant financial responsibility. Additionally, California Labor Code § 432.7 prohibits employers from asking about or considering an applicant’s arrest record that did not result in conviction, with some exceptions. Violations of these sections can lead to civil penalties and damages.
Seven Action Steps Upon Finding Background Check Errors
Discovering errors in your background check can be alarming, but taking the right steps to address these inaccuracies can help mitigate potential negative impacts on your life. This section provides a practical guide on how to effectively handle and correct errors in your background check. Whether you are dealing with inaccurate criminal records, incorrect employment history, or other discrepancies, following these steps can help ensure that your background check accurately reflects your true history and qualifications. By being proactive and thorough, you can safeguard your opportunities and protect your reputation.
Step 1: Obtain Your Background Check Report
When applying for a job or undergoing an employment review, it's common for employers to request a criminal background check, often referred to as a "consumer report." These reports are provided by background check companies, known as "consumer reporting agencies" (CRAs). Common CRAs include Checkr, LexisNexis, HireRight, and Sterling.
Under the Fair Credit Reporting Act (FCRA), these companies are mandated to follow "reasonable procedures to assure maximum possible accuracy" in the reports they generate. Despite this requirement, background check reports frequently contain errors.
Step 2: Check the Box! – Ensure You Receive a Copy of Your Background Check Report
Employers must obtain your written consent before conducting a background check. Consent forms typically include a checkbox allowing you to request a copy of your report, which you should receive around the same time as your employer. Always check this box to stay informed about what is being reported about you. If the consent form lacks this checkbox, contact the background check company directly (their contact information should be on the form) to request a copy of your report.
Step 3: Common Errors – Identify Information That Should Not Be Included in Your Background Check
Certain types of information should generally not appear on your background check report. These include:
Records belonging to someone else (mismatched individuals).
Incomplete case information (e.g., missing charge names).
Arrests that did not lead to convictions (not reportable at all in California) and arrests older than seven years (not reportable in most other states).
Crimes that have been expunged or sealed.
Misleading information, such as a single charge listed multiple times.
Adverse driving history older than seven years.
Misclassified offenses (e.g., misdemeanors reported as felonies).
Arrests where you completed a diversion program.
Minor marijuana arrests older than two years.
Convictions older than seven years (California only, except for Uber/Lyft positions).
Step 4: Avoid Costly Mistakes – Recognize Common Errors in Background Check Reports
Criminal background check companies often make mistakes in their reports. According to the National Consumer Law Center, common errors include:
Mismatched individuals: People with no criminal record being mistakenly reported as having one, especially those with common names.
Missing critical information: Reports may list an arrest without noting that the person was later found innocent.
Reporting sealed or expunged records.
Providing misleading information: Single charges may be reported multiple times, giving a false impression of multiple offenses.
Misclassifying offenses: Reporting misdemeanors as felonies.
Step 5: Review and Dispute Errors in Your Background Check Report
Thoroughly review your background check report for any mistakes, inaccuracies, or information that should not be included. If you find any errors, we can assist you in disputing them and help you recover damages for any losses incurred due to an erroneous report.
The Fair Credit Reporting Act (FCRA) provides you with the right to dispute inaccurate information and mandates that CRAs correct any errors within a reasonable time frame. Additionally, in California, errors like those mentioned above might entitle you to compensation of $10,000 or more under the Investigative Consumer Reporting Agencies Act (ICRAA).
Step 6: Follow Up – Ensure Errors Are Corrected and Take Further Action if Needed
After disputing the errors in your background check report, it is crucial to follow up with the reporting agency to ensure they correct the mistakes within the legally required time frame, typically 30 days. Stay in contact with the CRA and keep detailed records of all communications. If the corrections are not made within the stipulated period, consider seeking legal advice to explore further actions. Persistence is key to ensuring that your record is accurate and free from errors. If necessary, legal avenues are available to help you address unresolved disputes, ensuring your background check report accurately reflects your history.
Step 7: Seek Legal Assistance From A Background Check Attorney if Necessary
If the background check company fails to correct the errors or you face further issues, consider seeking legal assistance. An attorney who specializes in consumer protection laws can help you navigate the dispute process and ensure your rights are protected. They can also advise you on potential legal actions if your dispute is not resolved satisfactorily.
Six Requirements Employers and Landlords Must Meet When Obtaining or Using Your Background Report
Navigating the job market or finding suitable housing can be challenging, especially when background check reports come into play. Many job seekers and rental applicants encounter obstacles due to inaccuracies or errors in their background checks, which can unfairly impact their employment or housing prospects. Understanding your rights and the requirements employers and landlords must follow when obtaining or using these reports is crucial. This guide outlines the essential steps and legal protections, including the Fair Credit Reporting Act (FCRA) and the Investigative Consumer Reporting Agencies Act (ICRAA), to help you ensure your background check report is accurate and fair. Empower yourself with this knowledge to better protect your future opportunities.
1: Written Notice and Authorization Are Required
Before obtaining your background check report, your employer or potential landlord must provide you with a clear and conspicuous written notice indicating their intent to obtain a consumer report on you. This notice must be a standalone document, free from any other topics such as liability waivers. Additionally, they must secure your written authorization before proceeding. The written notice should include a section for authorization, or you should be given a separate authorization form to sign.
Requirement 2: Check-Box for Requesting Your Report – Ensure You Have Access
The written authorization form or section must include a check-box that allows you to request a copy of your background check report. If you check this box, the employer or landlord is obligated to provide you with a copy of the report within three days after receiving it.
Requirement 3: Accuracy and Fair Use – Protect Yourself from Inaccurate Information
Employers and landlords should not base hiring, rental decisions, demotions, or terminations on background check reports containing mistakes, errors, inaccuracies, or information that should not be included. Your report should not contain:
Records of someone else (mismatched individuals).
Incomplete case information (e.g., missing charge names).
Arrests that did not lead to convictions (not reportable in California).
Crimes that have been expunged or sealed.
Misleading information (e.g., single charge listed multiple times).
Adverse driving history older than seven years.
Misclassified offenses (e.g., misdemeanors reported as felonies).
Arrests where you completed a diversion program.
Minor marijuana arrests older than two years.
Convictions older than seven years (subject to constitutional challenges).
Requirement 4: Pre-Adverse Action Notice – Know Your Rights Before Adverse Decisions
If an employer or landlord intends to take any adverse action (such as not hiring you, not renting to you, demoting you, or evicting you) based on your background check report, they must first provide you with a copy of the report and a summary of your rights under the Fair Credit Reporting Act (FCRA). This gives you the opportunity to dispute any inaccuracies with both the employer or landlord and the background check company, often called a "consumer reporting agency" (CRA).
Common CRAs include:
Checkr
LexisNexis
HireRight
Sterling
Accurate Background
First Advantage
IntelliCorp
Requirement 5: Adverse Action Notice – Understand the Reasons Behind Employment or Rental Decisions
Should an employer or landlord take adverse action based on your background check report, they must provide you with a notice that includes:
The name, telephone number, and address of the background check company that supplied the report.
A statement that the background check company did not make the decision and cannot provide reasons for the adverse action.
Information on your entitlement to a free copy of the report from the background check company within 60 days.
Your right to dispute the accuracy and completeness of the report with the background check company.
Requirement 6: Follow Up – Ensure Corrections Are Made and Seek Legal Advice if Necessary
After disputing errors in your background check report, it is crucial to follow up with the CRA to confirm that corrections are made within the legally required time frame, typically 30 days. Keep detailed records of all communications and persist in ensuring your report is accurate. If the errors are not corrected, consider seeking legal advice to explore further actions. Persistence is key to maintaining the accuracy of your background check report, protecting your employment or rental prospects, and exercising your rights under the FCRA and relevant state laws. In California, the Investigative Consumer Reporting Agencies Act (ICRAA) provides additional protections, potentially entitling you to compensation of $10,000 or more for errors in your report.
SEEK AN ATTORNEY TO OBTAIN POSSIBLE FINANCIAL COMPENSATION.
Should I Represent Myself?
NO! You will almost certainly lose without an attorney, even if you should win on the legal issues. This is because you won’t understand the complex procedures applicable in court, and judges do not waive the rules for self-represented persons. As Abraham Lincoln said - “He who represents himself has a fool for a client.”
Can You Afford An Attorney?
YES. Many consumer protection attorneys, including our team, can handle Background Check matters for you on a contingency basis. Like those personal injury billboards you see while driving – you don't pay unless you win.
