Background Check Violations
Background checks are an essential part of the hiring process, loan application process, and even when you are looking for a new home. But what happens if the background check violates your rights? In this blog post, we will discuss everything you need to know about background check violations.
We will start by understanding what background check violations are and how they can impact individuals. Next, we will take a deep dive into the different types of background check violations that occur in employment, housing, loans, and online dating. We will also explore the legal implications of these violations and how individuals can challenge them. Lastly, we will provide some tips on how to avoid background check violations altogether.
So if you want to learn more about your rights and what actions you can take if your rights are violated during a background check, keep reading! But first, a very important question we often get…
Can a felony, misdemeanor, or infraction be a background check violation even if it’s a public record?
Yes. Any criminal event such as an arrest, criminal charges, or conviction can be a background check violation. Most notably, if the report includes a case where a conviction did not occur because of a program (like diversion), or it has been expunged or dismissed, or where the law cuts off it’s relevancy after a certain time period (such as 7 years), any record checks that disclose these instances can be violations with real legal consequences.
Understanding Background Check Violations: FCRA, FTC, EEOC, and State Laws
Background checks serve a very important public interest: to protect workplaces and ensure individuals have access to records that carry legal liability. But background check violations can have serious consequences for individuals when left unchecked.
For when it comes to hiring, employers rely on criminal history checks to make informed decisions. At the national level, these checks are regulated by the Fair Credit Reporting Act (FCRA), which outlines the proper background check process. Even simple traffic violations, such as speeding tickets or reckless driving, may be included in a criminal record and can impact job prospects.
Any criminal citation can be a part of your criminal record. It’s important to understand your rights under federal and state law and know what information employers can access. By being aware of your background information, you can navigate the interview process with confidence and ensure fair treatment. But a simple piece of paper with your criminal history can have far reaching effects on your daily life, such as housing, getting a loan, and dating online.
To assist in regulating and enforcing federal standards, and handful of government agencies police screening practices. Among the most prominent and involved are the FTC (Federal Trade Commission) and the EEOC (Equal Employment Opportunity Commission). Both commissions analyze, investigate, and enforce laws against discriminatory trends before such practices affect more consumers.
At the state level, most jurisdictions have their own counterparts to the FCRA as well as employment or consumer privacy oriented legislation. In California, several Labor Code, Penal Code, and Civil Code sections are devoted to the suppression of outdated or otherwise erroneous criminal data that can be reported as negative information on a background check. While felonies get the most attention, even a single driving under the influence arrest or charge can influence a major decision in someone’s life.
The Relevance of Criminal History in Background Checks
Employers commonly use criminal history checks to evaluate the suitability of job applicants. They take into account factors like the severity and recency of criminal offenses. Some states have implemented “ban the box” laws that restrict when employers can inquire about an applicant’s criminal history. It is crucial for employers to be mindful of disparate impact, where policies disproportionately exclude certain groups based on their criminal records.
Additionally, employers should consider the nature of the job and potential risks associated with it when evaluating an applicant’s criminal history. This ensures a fair and thorough background check process that aligns with the Fair Credit Reporting Act (FCRA) and promotes equal employment opportunities.
To monitor this broad and important issue, agencies such as the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have devoted countless resources to assist consumers in being informed of their rights.
Top 5 Types of Background Check Violations
There is more than one way a person’s past criminal history can affect their life in significant ways. Below are a short list of the most common background check violations and how they differ.
1. Employment-Related Violations: Hiring Decisions & Job Screening
Employment-related violations can arise when employers fail to follow proper procedures while using background check information to make adverse employment decisions–this is often called an “adverse action”. Violations may include not providing applicants with a copy of the background check report or denying them the opportunity to dispute any inaccurate information. Such violations can lead to charges of employment discrimination and legal consequences for the employer. It is crucial for employers to ensure that they adhere to the Fair Credit Reporting Act (FCRA) and provide applicants with a fair chance to address any discrepancies in their criminal background check. Violating the FCRA can have serious implications for a business.
2. Housing Application Violations
Housing application violations can occur when landlords use background check information to discriminate against potential tenants. These violations may include denying housing based on an applicant’s criminal history without considering relevant factors or using criminal history as a blanket exclusion. Such violations can result in charges of housing discrimination and legal ramifications for the landlord. It is important for landlords to follow fair housing laws and take into account individual circumstances rather than relying solely on criminal records. By doing so, they can ensure a fair and equal opportunity for all applicants.
3. Loan Application Violations
Loan application violations occur when lenders unfairly deny loan applications by using background check information. These violations can include denying loans solely based on an applicant’s criminal history, without considering other relevant factors. Such practices can lead to charges of discriminatory lending practices and legal consequences for the lender. It is important for lenders to follow fair credit reporting act (FCRA) guidelines and consider a comprehensive assessment of an individual’s financial situation before making loan decisions. Failure to do so can result in allegations of discriminatory practices and potential legal repercussions. The violations can be very real for hardworking business owners as well. As recently as May 2020, the Small Business Administration (SBA) crafted several interim rules that denied loans to entrepreneurs with criminal histories.
4. Online Dating Background Check Violations
Online dating platforms are not necessarily required to conduct thorough background checks on their users to avoid potential violations. Where legal ramifications occur are when dating platforms choose to notify other users of someone’s alleged history. In this sense, they voluntarily become screeners themselves. Although not traditional consumer agencies, a dating platform site can become a de facto reporting agency when disclosing erroneous information to third parties.
5. “People Search” and Data Broker Websites
At the fringe of many established consumer record reporting agencies are what most call “people search” engines that sell information about individuals such as: home address, social security numbers, property records, and criminal history. Historically operating under the radar, many have come under public scrutiny for violating the privacy of others–including victims of stalking. Relying on often outdated historical criminal data, these sites provide “instant” results that have not been evaluated under the standards of FCRA and state-level laws. Such violations will carry serious fines in most states and may cause significant litigation costs to the website administrators.
The Impact of Background Check Violations on Working Individuals
Background check violations can have a significant impact on individuals–most significantly in the job market. When employers engage in hiring practices that disregard the guidelines set by State laws and the Fair Credit Reporting Act (FCRA), it can lead to adverse consequences for job applicants. This is especially true when minor traffic violations or victimless misdemeanor offenses are considered as part of an individual’s criminal record. Prospective employers may unfairly judge an applicant based on this information, even if it has no bearing on their ability to perform the job in question. Such violations can hinder job prospects and unnecessarily limit opportunities for individuals.
Special Note: The Fair Chance Act in California
In California, AB-1008 became law under Government Code §12952 which has been referred to as the “Fair Chance Act.” At its core, it replaced the earlier “ban-the-box” laws that applied only to public employees. Fair Chance limits discrimination against job applicants based specifically on their criminal history. While it applies to businesses with five (5) or more employees, it carries some significant requirements.
How can Background Check Violations be Challenged?
Background check violations can be challenged through various methods. (1) One way is to gather evidence that provides the full picture, such as pointing out incorrect or outdated information, court minutes reflecting non-conviction resolutions, Orders to Seal or Expunge, and mistaken identity. (2) Another approach is to consult with an attorney specializing in background check laws who can guide you through the legal process. (3) Additionally, filing a complaint with the appropriate regulatory agency or reporting the violation to consumer protection organizations can also be effective.
How to Avoid Background Check Violations
To avoid background check violations, it is crucial to follow certain guidelines. But before doing anything, we highly recommend that you register with RecordFixer so that you can (a) maximize your privacy and remove your qualified criminal records from thousands of databases, and (b) can use our RecordSOS feature to report any violations that you have detected.
After you have cleared your record using our Portal, you will be in the strongest position possible heading into your job hunt.
Firstly, make sure when going for a job interview, that they obtain your written consent before conducting a criminal background check. Secondly, be aware of the specific laws regarding background checks in your state, such as California’s “ban the box” and Fair Chance Act. Third, request a copy of the report that was generated so that you can inspect any inaccurate or outdated information.
Does Expungement Erase Background Check Violations?
Expungement can remove certain offenses from public record, but it doesn’t guarantee erasure from all record systems. That is why we recommend using our system to monitor, flag, remove, and update the largest criminal data provider networks to avoid unnecessary disclosure. Understanding these limitations of expungement is crucial.
Does a Petition to Seal Arrest Avoid Background Check Violations?
A Sealed Arrest can limit access to the record, but may still be visible in criminal databases due to the lag time between an arrest and the Court Order to seal. Clients should update their records through RecordFixer to put the largest databases on notice of your Court Order.
Legal-Tech & Consumer Driven Solutions: RecordFixer
The RecordFixer portal offers user-friendly tools that empower attorneys and individuals to avoid background check issues efficiently. With this technology-driven solution, users can navigate the legal process of updating inaccurate and outdated criminal history information, taking control of their own records. The portal also provides guidance on understanding and disputing background check results, ensuring that users are well-equipped to handle any violations they may encounter. By utilizing the RecordFixer portal, individuals can prevent future background check violations while saving time and effort. This consumer-driven solution is a valuable resource for those seeking fair treatment in the job application process or wishing to maximize their online privacy.
There are ways to challenge background check violations and protect your rights. Expungement and petitioning to seal an arrest may help in certain situations. But legal-tech solutions like the RecordFixer portal provide consumer-driven options for addressing background check violations head-on. By staying informed, understanding your rights, and taking proactive steps to avoid violations, you can navigate the complex world of background checks with confidence.