Have you been denied a job in Alabama because of your Criminal Background Report? Many people contact our Alabama Expungement & Pardon law office to discuss the potential legal remedies of expungement or pardon of prior criminal cases in Alabama after they are denied a job, due at least in part, to a record of a prior criminal case in their criminal background report. Depending on what remedy, if any, you may be eligible for we can schedule you a consultation to discuss terms of representation to pursue that remedy. We have a lot of information on our website: www.ExpungementAlabamaLawyer.com providing people with general information regarding the petition for expungement and the application for pardon processes in Alabama.
In this blog post I want to discuss a different area of law that governs the actions of employers when they use a third-party background check company to provide criminal background reports on behalf of potential employees as a part of the employment application process. This law is called the Fair Credit Reporting Act (FCRA). Third party companies that are in the business of compiling information and supplying reports to an employer that includes an applicant’s criminal background is considered to be a “consumer report” (as is a credit report) that is governed by the Fair Credit Reporting Act. This Act provides specific legal obligations on the employer when they want to request and use a third party company to provide a background check on a potential job applicant.
In the event that the employer does not follow the proper procedures under the FCRA, the employer can be liable to the potential job applicant for money damages, including costs and reasonable attorney’s fees.
What are the regulations an employer must follow under the FCRA if they want to obtain and use a criminal background report from a third-party company in their hiring decision process for a potential job applicant? Except for certain exceptions for regulated transportation employers, please see the FCRA requirements on employers below:
- BEFORE a company/employer can obtain a criminal background or credit report from the third-party background check company, the employer MUST:
- Get permission in writing from the job applicant to obtain a criminal background report on the job applicant.
- Notify the job applicant in a stand-alone (separate) written document that the information gathered in the report may be used by the employer in the hiring decision process.
- If the employer wants to request an “investigative report” – one that provides details on an applicant’s character, good reputation, lifestyle, etc. – the employer must tell the applicant of his/her right to a description of the nature and scope of the investigation.
If an employer/company fails to do any of the above, for example: the employer obtains a criminal background report from a third-background check company without notifying the applicant in the proper, separate written document or not obtaining written permission from the applicant – the employer may be liable to the applicant for money damages under the Fair Credit Reporting Act.
2. AFTER a company/employer obtains a criminal background report from a third-party background check company, if the company/employer is going to take “adverse action” (for example not hiring the applicant or firing an employee) based on the report, BEFORE the employer takes an adverse action (based in part or in whole on any negative information in the applicant’s criminal background report), the employer MUST:
(1) Give the applicant a Notice that includes a copy of the criminal background report AND
(2) Give the applicant a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”.
The purpose of the legal requirement to give the applicant these two documents BEFORE taking any adverse action is so the applicant will have a copy of the report to be able to review it for accuracy and/or explain any negative information, if they wish.
3. Then, after providing the applicant these two documents and AFTER the employer takes an adverse action against the applicant (informing them they are not being hired) because in whole or in part based on information in the criminal background report, the employer MUST tell the job applicant (verbally, electronically, or in writing) that:
- The applicant was rejected because of the information in the report,
- The name, address and phone number for the company that provided the report,
- The company providing the report did not make the hiring decision and that they cannot give specific reasons, AND
- The applicant has the right to the accuracy or completeness of the report, and the right to receive an additional free report from the reporting company within 60 days.
If you have recently been denied a job in Alabama due at least in part to negative information in your criminal background check the employer obtained from a third-party company and you believe the employer did not follow the law as stated above from the Fair Credit Reporting Act, you may have a case against the employer. Feel free to contact us to schedule an office or phone consultation to discuss your situation further.
Our Childersburg, Alabama based Expungement & Pardon law office on occasions works in collaboration with a Consumer Rights law office in Birmingham, Alabama and other Consumer Rights lawyers licensed in Alabama representing consumers and job applicants in lawsuits against employers and companies that have violated the Fair Credit Reporting Act in the job hiring decision process based on third-party background check reports as stated above in this blog post.
If you wish to schedule an office or phone consultation to discuss your situation further, contact Attorney, Jordan M. Copeland via email at: Jordan@ExpungementAlabamaLawyer.com
via office phone at: (256) 378-6087 or (205) 924-3839.
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