Criminal background checks for employment are governed by the federal Fair Credit Reporting Act, which requires an employer to give you a written disclosure, get your written consent, show you the report before rejecting you, and let you dispute anything that’s wrong. State and local laws layer on top, and the Equal Employment Opportunity Commission adds rules against using criminal history in ways that discriminate. If an employer skips any of these steps, statutory damages of $100 to $1,000 per applicant, punitive damages, and attorney’s fees are on the table.
What an Employer Must Do Before Running a Check
Two things have to happen before a screening company can pull your record. First, the employer must give you a written disclosure stating that a consumer report will be obtained for employment purposes. That disclosure has to appear in a standalone document. It cannot sit in the fine print of the job application, and the document can contain nothing beyond the disclosure itself and a space for your signature.1Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
Second, you have to sign an authorization. The signature can appear on the same single-purpose form as the disclosure, but that form still cannot double as part of the employment application or any other document.2Federal Trade Commission. Background Checks: Prospective Employees, Keep Required Disclosures Simple Courts have not been forgiving when employers try to combine the two.
To run the search, the screening company needs your full legal name, any prior names or aliases, your Social Security number, and your date of birth. Previous addresses tell the agency which county courts to check.
What Shows Up and How Far Back It Goes
A standard criminal report pulls from county court records, state repositories, and federal district court records. It typically covers felony convictions, misdemeanor convictions, and pending cases. Depending on the scope of the check and applicable state law, it may also include arrests that did not lead to conviction. Records that a court has sealed or expunged should not appear, though errors happen.
The Fair Credit Reporting Act draws a sharp line between convictions and everything else. Convictions can be reported indefinitely. Most other adverse information — arrests without conviction, civil suits, civil judgments — drops off seven years after the date the record was filed.3Office of the Law Revision Counsel. 15 USC 1681c – Requirements Relating to Information Contained in Consumer Reports
There’s a large exception. If the job pays an annual salary of $75,000 or more, the seven-year restriction disappears, and older arrests and civil items become fair game. The threshold is written into the statute and has never been indexed for inflation, so it now captures many ordinary professional roles.
Some states are stricter than federal law and cap all criminal reporting, including convictions, at seven years. Where a state rule protects you more than the FCRA, the state rule controls.
Some employers also order broader reports that cover credit information, bankruptcy filings, and employment history verification.4Consumer Financial Protection Bureau. When I Apply for a Job, What Do Employers See When They Do a Credit Check for Employment and a Background Check? The FCRA’s disclosure and consent rules apply to all of it, and the employer must specify what types of reports it plans to obtain.
How Employers Are Supposed to Weigh a Conviction
A blanket policy of rejecting every applicant with any criminal record can violate federal anti-discrimination law even when the employer has no intent to discriminate. Because criminal records fall disproportionately on certain racial and ethnic groups, the Equal Employment Opportunity Commission treats across-the-board exclusions as a source of illegal disparate impact.5U.S. Equal Employment Opportunity Commission. Background Checks: What Employers Need to Know
The EEOC’s 2012 Enforcement Guidance, drawing on the court decision in Green v. Missouri Pacific Railroad, tells employers to weigh three factors before rejecting anyone based on a conviction:6U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
- The nature and gravity of the offense. Shoplifting is not fraud, and a job handling money changes the calculus.
- How much time has passed. Research cited by the EEOC shows recidivism risk falls significantly over time, so older offenses predict less.
- The nature of the job. Embezzlement matters more for an accounting role than for a warehouse role with no access to money.
This individualized assessment is not strictly required by federal statute, but employers who skip it have a hard time defending their policy as job-related and consistent with business necessity when the EEOC or a court asks.
State and Local Protections That Go Further
At least 37 states and more than 150 cities and counties have adopted “ban the box” policies that remove criminal history questions from initial job applications and delay any background check until later in the hiring process.7National Conference of State Legislatures. Ban the Box The scope varies. Some cover only public employers, others reach private employers above a certain size, and a few restrict how far back convictions can be considered or bar the use of arrest records entirely.
A newer wave of “Clean Slate” laws automatically seals eligible criminal records after a conviction-free waiting period, without requiring you to petition a court. At least 13 states plus Washington, D.C., have enacted a version. Sealed records generally do not appear in standard background checks.
A separate note on regulated industries: healthcare workers with direct patient access at long-term care facilities, child care staff, and employees of FDIC-insured banks are subject to federal background check programs that go beyond the FCRA and impose fingerprint-based FBI checks, specific disqualifying offenses, and in some cases outright statutory bars.8Centers for Medicare & Medicaid Services. CMS National Background Check Program9Administration for Children and Families. CCDBG Act Comprehensive Background Check Requirements10Office of the Law Revision Counsel. 12 USC 1829 – Penalty for Unauthorized Participation by Convicted Individual If you’re applying for one of those jobs, the rules described here still apply, but additional ones sit on top.
The Two-Step Adverse Action Process
If an employer decides not to hire you based in whole or in part on the background report, federal law requires a specific two-step sequence. This is where most FCRA lawsuits start, because it’s the step employers most often skip.
Pre-Adverse Action Notice
Before the decision is final, the employer must send you a pre-adverse action notice along with a complete copy of the background report and a written summary of your rights under the FCRA.1Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports The point is to give you a window to review the report and flag errors before rejection becomes final. If the record shows a conviction that actually belongs to someone with a similar name, this is when you catch it.
The statute doesn’t set an exact waiting period. The Federal Trade Commission has informally suggested at least five business days as a reasonable interval. What the law does require is that the pre-adverse action notice meaningfully precede the final decision. Employers who send both notices at once have lost on that point in court.
Final Adverse Action Notice
After a reasonable wait, if the employer still intends to reject you, it must send a final adverse action notice. That notice has to identify the screening company that prepared the report, state that the screening company did not make the hiring decision, and tell you that you have the right to dispute the report’s accuracy and to request a free copy of your file.1Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports You have 60 days from the date of that notice to request a free copy of your report from the screening agency.11Office of the Law Revision Counsel. 15 USC 1681j – Charges for Certain Disclosures
How to Dispute an Error on Your Report
Mistakes are common. Records get attached to the wrong person, sealed convictions resurface, and dismissed charges show up as active. If you receive a pre-adverse action notice and see something wrong, move fast.
File a written dispute directly with the background screening company that prepared the report. Describe the specific error and attach supporting documents — court records showing a dismissal, a name-change order, whatever proves the point. Put it in writing even if you first call, so there’s a paper trail.12Federal Trade Commission. Disputing Errors on Your Tenant Background Check Report Tell the employer at the same time that you’re disputing the report so they know a correction may be on the way.
Once the screening company has your dispute, it generally has 30 days to investigate and respond.13Office of the Law Revision Counsel. 15 USC 1681i – Procedure in Case of Disputed Accuracy If you send additional information during that window, the deadline extends by up to 15 days, capping at 45 days. Some states set shorter deadlines. If the investigation confirms an error or can’t verify the item, the company must delete or correct it and send you an updated report. Ask them to send the corrected version to the employer too.
If the dispute doesn’t go your way, you have the right to add a brief written statement to your file explaining the disagreement. Future reports must include that statement or a summary of it, and you can ask the company to send it to anyone who received the original report within the previous six months.
What It Costs an Employer to Get This Wrong
The FCRA has real teeth. An employer that willfully violates any FCRA requirement is liable to the affected applicant for actual damages or statutory damages of $100 to $1,000, plus whatever punitive damages a court awards, plus attorney’s fees and court costs.14Federal Trade Commission. Fair Credit Reporting Act Anyone who obtains a background report under false pretenses or without a permissible purpose owes actual damages or $1,000, whichever is greater.
Those per-applicant numbers scale quickly in class actions. A company that buries its FCRA disclosure inside the job application, rather than using a standalone form, exposes itself to claims from every applicant who went through that process. Many state fair chance laws add their own penalties, including administrative fines and private rights of action, so a compliance failure in one jurisdiction rarely stays contained once a pattern emerges.