Make Sure Your Employer Follows the Law for Background Checks
What employees in New Jersey need to know about their recordsBy Doug Mentes, Esq. | Last updated on January 12, 2023
Use these links to jump to different sections:
- Get Ahead of Potential Negative Information
- Employer Obligations for Background Check
- What if Something Bad Turns up in the Background Check?
- What if the Information Was Inaccurate?
Get Ahead of Potential Negative InformationIf you will be subject to a background check, ensure there are no surprises. You can obtain a free copy of your credit report from each credit reporting agency (CRA) here, and review your current credit files. While there, you can correct any inaccurate information. It may also be worth your time to explore expunging and/or sealing criminal records, and resolve civil judgments, if possible.
Employer Obligations for Background CheckThe FCRA requires employers follow certain steps before it is allowed to obtain and use a credit history report for employment reasons. The first step is to provide a disclosure to the prospective employee that a background screening is being obtained for employment purposes. Under the FCRA, this disclosure must be:
- In writing
- Clear and conspicuous
- In a document that consists solely of the disclosure
What if Something Bad Turns up in the Background Check?The employer must provide notice before it takes adverse action based on information found in the report. This “pre-adverse action notice” must include:
- One copy of applicant’s consumer report
- A copy of applicant’s summary of rights under the FCRA
- the name and contact information of the CRA that provided the background check on which the adverse employment decision was based
- a statement advising the individual that the CRA did not make the adverse employment decision and therefore cannot provide any reasons why the adverse action was taken
- notification that the applicant or employee is entitled to receive a free copy of the background check or consumer report on which the adverse action was based within a 60-day period.
What if the Information Was Inaccurate?The CRAs and furnishers of sensitive information also have obligations, the most important being that it has taken certain steps to ensure the information is accurate. If the information within the report is not accurate, the employee should promptly inform the credit reporting agency and dispute the inaccurate information, requesting it be removed or modified. If the CRA and the furnishers of the negative information agree, the CRA should make the changes requested. If the employee requests, the CRA will provide correct copies of the employee’s credit report to anyone who had requested the employee’s credit reports within the previous six months. If the CRA denies to make any changes, the employee may be left with no other recourse than a lawsuit against the CRA. If that is the case, employees should discuss their options with an experienced New Jersey consumer law attorney who specializes in FCRA claims. For more information on this area of law, see our overview of consumer law.
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