Last week, the NYT published yet another story about the debilitating effects a criminal history can have on seeking employment. These days, the criminal history background check is a nearly ubiquitous part of the job search- candidates with past convictions can have trouble even finding work as the proverbial burger-flipper!
In reaction to this problem, many states and municipalities have enacted or are currently considering "ban the box" laws prohibiting employers from asking certain questions at certain stages of the hiring process. As reported by the Times, the percentage of men with criminal records grew rapidly in the past few decades as a result of aggressive policing and the prosecution of the "war on drugs." The proliferation of databrokers in the past decade has made criminal history background checks fast and easy to obtain, and has left prospective workers with even minor or unrelated criminal convictions scrambling to find employment.
The ban the box (outlaws the "have you ever been convicted" checkbox on initial employment applications) movement is gaining momentum, and laws have passed in fourteen states, including California, New Jersey, and just last week Georgia, as well as in several cities. These efforts are aimed at preventing the pre-screening of applications to the categorical exclusion of everyone with a criminal conviction. This effort to alleviate the wide-spread disenfranchizement of a large section of the population will hopefully reduce recidivism and be a step back from the draconian policies that have made the United States the leading incarcerator in the country.
In addition to creating barriers to employment and reintegration, another problem with the widespread use of criminal history background checks is with the accuracy of the information provided. In response to widespread inaccurate reportingthe Federal Trade Commission has increased enforcement of the protections of the Fair Credit Reporting Act in recent years. The FCRA, among other things, requires credit reporting agencies such as those who provide pre-employment screening to follow reasonable procedures designed to assure maximum possible accuracy. In 2012 the FTC announced a $2.6 million settlement against HireRight Solutions for FCRA violations, including failing to follow procedures to assure maximum possible accuracy, failing to give customers copies of their reports, and failing reinvestigate consumer disputes as required by law.
Despite the protections of the FCRA, many credit reporting agencies have been fast and loose with their reporting- attorneys at Edelstein & Payne have successfully represented clients who are victimized by false information in background checks that resulted in revoked offers of employment. In one case, a client was reported as a registered sex offender in New York State, a place he had never been! Our investigation revealed that the reporting agency had merely used his (common) name and date of birth, without any other procedures to ensure the accuracy of their report. Thankfully, the FCRA contains a provision for attorneys fees for prevailing plaintiffs, providing a powerful tool allowing vindication of victims of false background checks, and in that case, the client was able to obtain a favorable settlement.
The movement to limit the use of criminal history reports in pre-employment screening is a movement to strengthen communities and give hope to the downtrodden. It will help to decrease criminal recidivism by removing one roadblock on the path to reintegration, and help to mitigate the enormous harms of the war on drugs and other aggressive policing policies. The ban the box movement is gaining momentum in North Carolina too- successful policies and ordinances have passed in the City of Durham as well as Cumberland County and the towns of Cary and Carrboro and Spring Lake.
More info about the Ban the Box movement in North Carolina can be found at NCJustice.org. The National Consumer Law Center published a fantastic comprehensive report on the use of false background check information back in 2012, here is a link.
If you have been a victim of false information on a criminal history background check, give us a call and schedule a consultation with an attorney who is familiar with and has successfully used the FCRA to set the record straight.