Legal summary: What appears in an employment background check depends on the employer’s request, the screening company’s products, the position, and applicable federal, state, and local law. A report may include criminal-record information, employment and education history, driving records, professional licenses, identity information, or credit-related information. The Fair Credit Reporting Act applies when an employer obtains a report from a company that qualifies as a consumer reporting agency.
Fowkes & Hasanbasic represents Florida consumers in FCRA cases involving inaccurate employment background reports, mixed identities, obsolete information, and inadequate investigations.
For a free case review, call (727) 500-1010.
Contents
What Is an Employment Background Check?
An employment background check is information used to evaluate an applicant or employee for hiring, retention, promotion, reassignment, or another employment decision. When a third-party screening company assembles or evaluates information for an employer, the resulting report may be a consumer report governed by the FCRA.
An employer’s own review of public information may raise other legal issues, but it does not automatically involve the same FCRA duties that apply when a consumer reporting agency supplies a report.
What May Appear in a Pre-Employment Background Report?
No single report contains every category below. Depending on the search ordered, a report may include:
- Identity information: names, aliases, addresses, dates of birth, or Social Security number variations used to match records
- Employment history: prior employers, dates of employment, positions, or information supplied by references
- Education and credentials: schools attended, degrees, professional licenses, or certifications
- Criminal-record information: court records or database results relating to arrests, charges, dispositions, or convictions
- Driving records: license status, moving violations, suspensions, or other motor-vehicle information relevant to the position
- Credit-related information: information from a credit report when the employer lawfully requests it for employment purposes
- Civil and public records: potentially including bankruptcy filings, civil cases, or other public-record information
- Sanctions or watch-list information: records relevant to regulated industries or particular job responsibilities
- Investigative information: interviews concerning character, reputation, personal characteristics, or lifestyle when an investigative consumer report is requested
Database matches are not self-proving. Similar names, incomplete identifiers, outdated records, missing dispositions, and data-entry errors can cause information belonging to another person—or information that no longer accurately describes a case—to appear in a report.
Do Pending Charges or Arrests Appear?
They may appear, depending on the source, the reporting company’s procedures, the age and disposition of the record, the position, and applicable law. An arrest is not the same as a conviction, and a pending charge is not a final disposition.
The FCRA contains reporting-period rules for certain adverse information, but exceptions and other laws may affect the analysis. State and local laws can impose additional restrictions on when criminal-history information may be requested or used. Consumers should avoid assuming that every record is either universally reportable or universally prohibited.
Can an Employer See Your Credit Score?
An employment credit report is not necessarily the same product a lender receives, and an employer does not automatically receive a credit score. The information supplied depends on the report requested and applicable restrictions. Federal law requires a permissible employment purpose and generally requires the applicant’s or employee’s written authorization before a consumer reporting agency provides an employment report.
State and local laws may further restrict the use of credit information for employment decisions.
What Must an Employer Do Before Ordering the Report?
According to the Federal Trade Commission’s employment background-check guidance, an employer obtaining a report from a background-screening company generally must:
- Provide a clear and conspicuous written disclosure in a stand-alone format that a consumer report may be obtained for employment purposes
- Obtain the applicant’s or employee’s written authorization
- Make required certifications to the screening company
- Provide additional disclosures when requesting an investigative consumer report, when applicable
The language and presentation of the disclosure can matter. Whether a particular form complies with the FCRA requires review of the actual document and circumstances.
What Must Happen Before Employment Is Denied?
Before taking an adverse employment action based in whole or in part on a consumer report, an employer generally must provide the applicant or employee with:
- A copy of the consumer report relied upon
- A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”
The purpose is to provide an opportunity to review the report and identify errors before the decision becomes final. The FCRA does not state a universal five-business-day waiting period. Whether the opportunity provided was reasonable depends on the circumstances and any other applicable law.
After the final decision, additional adverse-action notice requirements apply. Read our guide to employment pre-adverse and adverse-action notices.
Common Employment Background-Check Errors
Potential errors include:
- A criminal record belonging to another person with a similar name or date of birth
- A charge reported without its dismissal, acquittal, reduction, or other disposition
- An expunged, sealed, or otherwise restricted record reported contrary to applicable law
- A misdemeanor reported as a felony
- An inaccurate employment or education history
- A record duplicated or reported under multiple entries
- Old information reported outside an applicable reporting period
- A bankruptcy, civil record, driving record, or license belonging to someone else
- An algorithmic score or recommendation based on inaccurate underlying information
Not every unfavorable item is inaccurate, and not every inaccuracy establishes an FCRA violation. The report, source records, matching identifiers, investigation history, disclosure to the employer, and resulting harm must be examined.
What Should You Do If the Report Is Wrong?
- Obtain the complete report. Request the report from the screening company and preserve every page.
- Save the employer’s notices. Keep the pre-adverse notice, final notice, emails, text messages, and application records.
- Identify each specific error. Explain the incorrect record, field, date, disposition, or identity match.
- Gather source documents. These may include certified court dispositions, identification, employment records, diplomas, licensing records, or driving records.
- Dispute with the screening company. Submit a focused dispute with supporting records and retain proof of delivery.
- Document the employment consequences. Preserve evidence of a rescinded offer, termination, lost promotion, delayed start date, lost wages, or other harm.
- Employment Screening Errors Lawyer in Florida
- Pre-Adverse and Adverse-Action Notice Guide
- Florida FCRA Lawyers main page
- How an FCRA Lawsuit Works in Florida
Talk to a Florida Employment-Screening Lawyer
If an inaccurate employment background report affected your job application or employment, Fowkes & Hasanbasic can evaluate the report, notices, dispute history, and resulting harm.
Call (727) 500-1010 for a free case review.
Paul R. Fowkes, Esq., is a co-founding shareholder of Fowkes & Hasanbasic and has more than 20 years of experience handling consumer-related claims in Florida. His practice includes FCRA litigation involving employment-screening companies, credit bureaus, furnishers, mixed files, and consumer disputes.
Read Paul Fowkes’s biography or verify his license through The Florida Bar.
This article provides general information and is not legal advice. Reading it or contacting the firm does not create an attorney-client relationship. Employment-screening issues depend on the facts and applicable federal, state, and local law.