Cases & Investigations

Lawsuit Investigation: Employment and Criminal Background Report Errors

CASE STATUS: Under Investigation

Berger & Montague, P.C. believes that consumer and credit reporting agencies must be held accountable when they make mistakes in their employment/criminal background reports. If you believe a background check company or a credit bureau has included improper, mistaken, or inaccurate information about you in a background check, please contact Berger & Montague.

Below are additional steps you can take if there is an issue with your employment/criminal background report. Know that each link will open a new window or tab to another webpage with more information on the particular topic.

Request a copy of your background check from your employer or potential employer

Under the Fair Credit Reporting Act (“FCRA”), you are entitled to a copy of your background check. If you were not hired or fired from a job because of a background check, the employer is required to provide you with a copy of the report as well as the name and address of the background check company. If someone ran a background check for reasons other than employment, you should receive a notice that provides the name and contact information of the background check company.

Identify the source of the error

Once you receive a copy of your background check, identify the source of the error. Employment-related background checks can include the following information:

  • Criminal background
  • Educational history
  • Employment history
  • Residential history
  • Credit history

If you have a criminal background, the report the employer receives will include details on that criminal history. Those details may include:

  • Jurisdiction (the court where the case was held)
  • Charges brought
  • Charge level (misdemeanor, felony, etc.)
  • Charge date
  • Disposition (guilty, dismissed, deferred)
  • Disposition date
  • Sentence

Background checks may not include any of the following:

  • Information about an arrest that happened more than seven years ago
  • Information about criminal charges that are more than seven years old and were dismissed
  • Information about criminal charges that are more than seven years old and that resulted in a deferred adjudication or other diversion program
  • Any information about bankruptcies that are more than ten years old
  • Any other adverse information, other than convictions, that are more than seven years old

Including any of this information in a background report is illegal.

Some of the most common background check problems include:

  • Mixed files – criminal records belonging to someone with the same or similar name ending up on your report
  • Incorrect information – criminal record information that is reported incorrectly, such as incorrect disposition information (for example, “guilty” instead of “not guilty”), or incorrect severity (for example, misdemeanors that are reported as felonies).
  • Reporting of expunged or sealed charges – if a criminal record or conviction has been expunged or sealed, it should not be included on a background report
  • Alternative dispositions misreported – many states have diversion or other alternative disposition programs in which a conviction can be avoided if an individual meets certain conditions over a period of time (for example, avoiding additional criminal charges for a year). Participation in these programs can sometimes be misreported as a conviction
  • Duplicate reporting – criminal records that are included on the same report multiple times, making a criminal record look longer than it is

Also keep in mind that if a large amount of information on your background report is incorrect, the problem might be with the government’s records, not the background check company. In order to fix the problem, you need to find out which government agency is providing the flawed information. You can do this by requesting a copy of your file from the background check company who put together your report. Once you see where the flawed information is coming from, contact that government office with the correct information.

Background check errors can also be caused by identity theft. If you suspect that your identity has been stolen, alert the credit bureaus. They will put a fraud alert on your file so that anyone pulling your credit report knows the information is compromised. You can also request that the credit bureaus place a freeze on your credit, which will prevent most creditors from accessing your credit report entirely.

If there is specific information on your credit report that you believe is a result of identity theft, you can request that the credit bureaus block that information from your account. You will need to provide the credit bureaus with a police report showing that you have reported the identity theft. You will also need to provide proof of your identity, highlight the information to be blocked, and provide a statement that the information is not related to any transaction involving you. Once the credit bureaus receive that information, they are required to block the information within four business days.

Once you’re received a copy of your background check and identified the error(s), contact Berger & Montague. We will be able to assist you with next steps.

In addition to knowing what steps to take if there is an issue with your employment/criminal background report, it’s also important to be familiar with the guidelines surrounding background reports.

Who is able to pull a background report on me?

Employers are able to run a background check on you at any time, but only with your permission. Specifically, an employer or potential employer must disclose to you, in writing, that they plan on running a background check. They must also obtain your authorization to do so, in writing.

Spouses are also able to pull background checks, but only if they have written permission or a permissible purpose under the FCRA.

How far back can a background check go?

It is an unfortunate myth that employers are only allowed to do a background check going back for seven years. In reality, employers can look as far back into someone’s history as they choose. However, under the FCRA, background check companies are not allowed to report negative information about a consumer that is older than seven years, except for criminal convictions. Non-convictions can only be reported for seven years. Arrests, indictments, dismissed charges, most traffic charges, and other criminal justice system contacts that are not convictions of crimes cannot be reported for longer than seven years.

If you went to a diversion program to avoid a conviction, background check companies can report that information for up to seven years. However, the information needs to be accurate. If the background check company is reporting a diversion as a conviction when there was no conviction, that report may be inaccurate and therefore illegal.

Will traffic charges like speeding tickets show up on a background check?

Background check companies can report information about your driving history for up to seven years. Whether a background check company can report your driving history beyond seven years depends on whether the incidents in your driving history are considered criminal or non-criminal under the laws of your state. In many states, minor driving infractions such as speeding or non-moving violations are not criminal in nature and cannot be reported beyond seven years.

Can a background check include information about an expunged criminal charge?

No. Background check companies should not report expunged criminal charges.

How can I get my criminal history expunged?

Expungement is a state-by-state issue. Depending on what state you are in, there are different policies and procedures that determine whether your criminal background can be expunged. State laws will also determine what it means to have something expunged and whether and to what extent information about your criminal background can be reported by background check companies.

How can I fix a mistake on my background check?

Under the FCRA, background check companies are required to reinvestigate any disputed information reported within 30 days of receiving a dispute. Many background check companies have forms that you can use to submit a dispute, or you can send the background check company a letter that describes your dispute.

In addition to the form or letter, you should also send copies of any documents that show information was reported incorrectly. After completing its investigation, the background check company is required to inform you of the investigation’s results.

Can I sue a background check company?

If a background check company has failed to follow the FCRA, you may have a legal claim. If your claim is successful, you can obtain:

  • Your actual damages, such as lost wages and emotional distress
  • An award of statutory damages

You may also have the opportunity to serve as the representative in a class action case, which would allow you to help recover damages for a larger group of people.

What is the statute of limitations for suing over a background check error?

The statute of limitations under the FCRA is two-tier. No matter what, you have at least two years to sue for a FCRA violation. If you are unaware of the violation, you may have up to five years to file suit.

Speak with our attorneys for free

If there is an error on your criminal background check report or employment background screen, the lawyers at Berger & Montague will evaluate whether or not you have a claim for free. You may have a legal claim if an employer or background check company failed to follow FCRA procedures, and this prevented you from being hired by an employer or meant you were mistakenly fired from your job. Our background check attorneys will review your background check report for free and work to get you the compensation you may be entitled to for any lost wages and emotional distress.

Click here to contact us, or you can email info@bm.net or call (800) 424-6690.

Lead Attorneys

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E. Michelle Drake

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