Are Criminal Background Checks Subject to the FCRA?

By Michael Klazema on 8/21/2019

The Fair Credit Reporting Act (FCRA) is a federal law, active since 1970, that regulates the collection and use of information obtained through consumer reporting agencies. Sometimes, employers assume that this law only applies to credit checks and that they do not need to pay attention to it if they aren’t running credit history checks on employees or job candidates. The FCRA applies to all consumer reports. If you are running a criminal background check in an employment setting, you must abide by the FCRA. 

What is a criminal background check, in the context of the FCRA? It is any report that you obtain through a third party that outlines a person’s criminal history or lack thereof. It is illegal even to conduct a formal criminal background check on a job candidate without complying with the FCRA, let alone to disqualify them from job consideration based on background check findings. With that said, if you do decide to reject a job candidate based on something from that person’s criminal history check, you must follow additional FCRA requirements. 

To learn more about FCRA compliance, you can read our Learning Center page. This resource includes a detailed breakdown of how the FCRA affects the pre-employment screening process. As you will see, the FCRA impacts virtually every aspect of the background check process. 

Before conducting a criminal background check, you must inform the candidate and obtain their permission to run the check. Many employers make errors during the disclosure and consent part of the process, as there are specific requirements about how they can present documentation to a candidate. 

If you run a background check, it comes back clean, and you decide to hire the job candidate, then your worries with the FCRA are effectively finished—at least for that hiring process. You can move ahead with hiring the candidate without worrying about additional compliance factors. If you are thinking about disqualifying a candidate based on background check findings, then FCRA compliance becomes a bit more complicated.

 You must provide a pre-adverse action notice before making your final decision, furnishing the candidate with a copy of the background check report and a summary of their rights under the FCRA. This step gives the candidate a chance to dispute the background check findings before you make a final decision.

If the candidate doesn’t dispute the check and you decide to remove them from your applicant pool, you must send an additional written notification of your decision. You also need to provide details about the company that prepared the background check and let the individual know that they have a right to obtain a copy of the background check report at no cost. 

The FCRA does not just apply to credit reports or criminal background checks. Any information that you obtain through—or any other consumer reporting agency—is similarly regulated under the FCRA legislation. That list includes driving history checks, employment verification checks, civil and history checks. 

Contact us today if you have any questions, and use our Learning Center resources to learn the ins and outs of background screening.



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