Florida Employment Background Check Violations Attorney

Under the Fair Credit Reporting Act (FCRA), employers must follow strict guidelines when conducting background checks on potential or current employees. If you had your background checked, and it wasn’t properly disclosed or authorized, this might be a violation of your rights.

At Yormak Employment & Disability Law, we specialize in handling cases like yours. Led by Benjamin Yormak, a board-certified expert in employment law, our team is ready to guide you through the complexities of the FCRA and fight for your rights. Contact us today for a free consultation.

Understanding Background Checks

Background checks are legal and can provide valuable information for employers. However, they can also be a source of stress and concern for job seekers because background checks go beyond criminal record checks. Today’s background checks can paint a picture of your job history, creditworthiness, and more. The information disclosed in these checks can impact candidates’ chances of securing employment, making it crucial that they are conducted fairly and accurately.

The Fair Credit Reporting Act (FCRA) regulates how agencies and employers may conduct background checks and provides guidelines to be followed before and after reports are issued.

The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) is a federal law designed to protect the privacy and accuracy of personal information. This law regulates how consumer reporting agencies collect, disclose, and use data. It also sets guidelines for employers who wish to use this information in their hiring or employment decisions.

The FCRA stipulates that employers must obtain an employee’s written consent before conducting a background check. This consent cannot be hidden within another document – it must be clear and provided in a standalone format.

If an employer decides to take adverse action based on the results of a background check, they must provide candidates with a copy of the report and a summary of their rights under the FCRA before making their final decision.

The “7-Year” Rule

15 U.S.C. § 1681 determines that consumer reporting agencies cannot produce reports containing civil suits, civil judgments, paid tax liens, and records of arrests going back more than seven years or until the governing statute of limitations has expired.

This provision is commonly known as the “7-Year Rule” under the FCRA, and it prevents outdated information from unfairly hindering a person’s chances of finding employment.

However, it’s important to note that there are exceptions to this rule. For instance, if the salary for a job opening or role is more than $75,000 a year, the 7-year limit does not apply.

Information Reported in Background Checks

When an agency conducts a background check, it typically seeks to uncover specific types of information. Below is the most common information that agencies report.

• Credit history: Includes information about a candidate’s market credit, late payments, and bankruptcy.
• Criminal record: This includes convictions, arrests, and possibly pending charges.
• Employment history: This includes past employers, job titles, dates of employment, and reasons for leaving.
• Educational background: This verifies degrees, diplomas, or certificates obtained. It can also include a review of the schools attended and the dates of attendance.
• Professional licenses: This could include checking the validity of licenses for medical practitioners, lawyers, teachers, drivers, etc.
• References: These are accounts from previous employers or colleagues. They can provide insight into a candidate’s work ethic, character, and skills.

Recognizing Discriminatory Employment Practices

Discriminatory employment practices arise when employers misuse background check information, leading to unfair treatment based on criminal records or credit history.

Furthermore, the Equal Employment Opportunity Commission (EEOC) states that it’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, or religion.

For instance, asking only people of a certain race or ethnic background about their financial histories or criminal records might be evidence of discrimination. Inconsistencies in the hiring process could support claims of bias, such as allowing an ethnic group to explain their criminal history but not racial minorities.

Background Check Agencies

Background check agencies play a crucial role in the employment process. However, these agencies are also regulated by the FCRA and must adhere to specific standards to ensure the accuracy and privacy of the information they report. To comply with the law, background check agencies should:

• Establish procedures that ensure accuracy in reporting
• Have certifications from clients proving that they have the applicant’s written consent, the employer is following FCRA regulations, and the employer will not use the information to violate equal opportunity laws.

A background check agency can be held accountable if it fails to meet these standards. For example, if an agency provides inaccurate information that leads to an adverse employment decision, they may be liable for damages. They also must comply with guidelines on disclosing and disposing of background check information.

Pre-adverse and Adverse Action Notice

The FCRA requires employers to follow specific rules if they plan to take adverse action (such as not hiring a candidate or terminating employment) based on information found in a background check. As a pre-adverse notice, they must:

• Obtain written consent before conducting a background check.
• Provide a copy of the fully disclosed report if they plan to take adverse action based on its results.
• Allow employees or candidates to dispute any inaccurate or incomplete information in the report before making a final decision.

If the employer proceeds with the adverse action after candidates had a chance to dispute the information, they must provide them with an adverse action notice.

This notice should provide the contact information of the consumer reporting agency that supplied the report and remind them of their right to obtain another free report from the agency within 60 days.

These notices ensure that candidates are treated fairly during the hiring process and have an opportunity to correct inaccuracies in a report. If an employer fails to provide these notices before taking adverse action, they may violate the FCRA.

Candidates are Entitled to Dispute Employment Background Checks

If a background check reveals information that could impact a candidate’s employment prospects, it’s important to remember that candidates have the right to dispute these findings.

The dispute process involves the candidate notifying the reporting agency, in writing, of the incorrect information. The agency must then investigate the dispute within 30 days and correct any inaccuracies found.

This process ensures that candidates are given a fair chance to rectify any report errors that could affect their employment prospects.

Employers’ Liability For Not Conducting Criminal Background Checks

Employers have a responsibility to conduct criminal background checks in Florida. Failure to do so can result in liability for negligent hiring or retention. This is particularly true for positions where the employee interacts with the public or has access to customers’ homes or personal information.

Negligent hiring or retention occurs when an employer fails to conduct a proper background check on an employee, who then causes harm to others. In such cases, the employer can be liable for damages if it’s proven they should have known about the employee’s inclination for harmful behavior.

Contact Us for a Free Consultation

Attorney Benjamin Yormak’s specialty is navigating Florida employment disputes as a board-certified employment law expert. If a poorly conducted background check has violated your rights, you don’t have to navigate this alone.

We’re committed to protecting your rights and ensuring you are treated fairly throughout your employment journey. Contact Yormak Employment & Disability Law today for a free consultation.