Also, the Privacy Rights Clearinghouse notes that
the restrictions on reporting imposed by the Fair Credit Reporting
Act don't apply to jobs that have salaries more than $75,000 per
year. Some states, most notably California, have stronger protections
for consumers in these situations than the federal act.
federal act stipulates that the following information cannot be reported on an
employer background check:
- Records of arrests, civil
lawsuits and civil judgments after seven years
- Accounts put
in for collection after seven years
- Paid tax liens after
- Any other negative information -- criminal convictions
being the exception -- after seven years.
can be included in background checks, federal law prohibits discrimination against
applicants who have filed for bankruptcy. In many but not all states, employers
cannot seek arrest record information on applicants, though such information is
a matter of public record, according to the Privacy Rights Clearinghouse.
Under the recently passed Fair and Accurate Credit Transactions
Act, you have the right to obtain a free copy of an employment background check
file once a year. However, many screening companies don't keep information on
file once they've given a report to a company, so that right might not do you
much good in practice, says Friery.
While an employer doesn't
have to tell you what company is doing the screening, it makes sense to ask because
at least some companies will provide that information so you will know where to
go if there is a problem.
While all third-party employment-screening
companies are required to provide free reports and make a toll-free number available
for consumers, this information isn't easy to track down. ChoicePoint,
one of the largest screening firms, does have a system set up and you can call
866-312-8075 to get a free copy of your file, if they have one on you.
an employer is prepared to deny you employment as a result of information obtained
during the course of a background check, the employer must provide you with a
"pre-adverse action disclosure" before that decision not to hire you
is actually made, according to the Privacy Rights Clearinghouse. This disclosure
should include a copy of the report and an explanation of your rights under both
the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act.
Massad says that at this point, or even before this point,
many employers will give you the chance to explain any problems. "For example,
if you have the same name as your father and the background check shows that you
have problems, you could call the company that reported the inaccurate information
and figure out how to dispute it," she says. "Many employers will give
five to 10 days to dispute that information and once the information has been
corrected, consideration will again be given to that applicant."
a company denies you employment as a result of this information, it must give
you an "adverse action notice" that includes the name and contact information
of the screening company, that the employer made the adverse decision -- not the
credit reporting agency -- and that you as the applicant can dispute the information
for either accuracy or completeness.
Friery doesn't believe that these provisions adequately protect
consumers. "We really question the effectiveness of these provisions,"
she says. "An employer can easily say that the person was not hired because
someone else was more qualified, not because of the information found out in the
background check, in which case they don't have to provide these notices. So how
would you ever know if there was inaccurate information in your background check
report if no one tells you?"
These issues are important
given the growing incidence of criminal identity theft and the general level of
misinformation in public records, says Stanley of the ACLU. "People can find
themselves trapped in a Kafka-esque situation where they are running around in
circles unable to correct false information about themselves or if they are able
to correct it, it just pops up again somewhere else," he says. "In the
meantime, they've been passed over for a job or denied credit or lost their dream
home and there is nothing they can do."
Both Stanley and
Friery believe that additional steps need to be taken by the federal government
to protect privacy. "We need an overall federal privacy law that protects
consumers and states what information can and can't be used for," he says.
He notes that in most European countries, privacy laws are much stronger and governments
closely monitor privacy rights and issues and also enforce the laws.
now, private parties can be sloppy about information and about people's lives
without any fear of the consequences," he says. "These kind of horror
stories that we've long predicted are inevitable are starting to hit people in
Consumers can also take other steps to protect
themselves from potential issues raised during a background check. The Privacy
Rights Clearinghouse recommends that you take pro-active steps at the start of
your job hunt, including ordering a copy of your credit report and checking court
and state department of motor vehicle records and your personnel file at past
employers for accuracy. You could also pay a large background-checking firm to
run a background check on you so that you'll be prepared for anything that might
Applications and interviews
The Fair Credit Reporting Act does not restrict employers from asking questions
in a job application form. So, while a background check can't include an arrest
record, for instance, there is nothing to stop an employer from asking if you've
ever been arrested.
Employment applications have gotten longer
and sometimes people are confused about how to answer a question. But even an
inadvertent mistake can get you in trouble if that information on your application
doesn't jibe with what's uncovered in a background check.
interviews are a different story. The federal Equal Employment Opportunity Commission
enforces federal employment laws. Basically, questions asked in an interview should
directly relate to functions that a person has to perform on the job. Questions
that shouldn't be asked include:
- Do you have children?
you a U.S. citizen
- Do you have any disabilities?
much do you weigh?
For a rundown of other illegal
questions and related questions that are legal, see the Job Choices Career Library
article "Handling Illegal Questions" at Jobweb.com.