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Employers Seeking Criminal Background Information Must Update Notices

By: Rebecca Goldberg

Changes on the federal and state levels require employers to update notices to employees and applicants subject to criminal background checks or inquiries.        

Employers conducting background checks must update the Summary of Fair Credit Reporting Act Rights issued to employees and applicants.  The new notice is available here.  The changes to the notice are not substantive, but it is important to update the notice given to applicants and employees in order to be in compliance with the law.  If you use a third-party vendor for background checks, you should ensure it is using the updated notice.  The deadline to comply is in March 2024, but employers can begin using the new form now.

If you conduct background checks but are not familiar with the Fair Credit Reporting Act (“FCRA”), it is crucial to get up to speed.  Seemingly minor technical violations have led to major litigation for employers.

FCRA is a federal law that applies in various contexts.  With respect to employers, FCRA applies to those using “consumer reports,” such as credit checks and background checks.  Before requesting such reports, FCRA requires employers to obtain written consent from the applicant or employee and to distribute the Summary of Fair Credit Reporting Act rights.   The written consent must be given on a standalone form.

If the employer chooses to take an adverse action based on information contained in the consumer report, such as a refusing to hire an applicant based on a criminal conviction, the employer must provide a copy of the report along with a copy of the Summary of Fair Credit Reporting Act rights.  This must be done before taking an adverse action.

After taking an adverse action, the employer must provide notice of the adverse action including:

  • the name, address, and phone number of the consumer reporting company that supplied the report;
  • a statement that the company that supplied the report did not make the decision to take the unfavorable action and can’t give specific reasons for it; and
  • a notice of the employee’s or applicant’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if requested within 60 days.

Employers are also required to securely dispose of reports when they are no longer being used, such as by burning paper files or erasing electronic files so that the information cannot be read or reconstructed.

Remember that Connecticut law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.  There is an exception when the employer is required to do so by state or federal law and to comply with bonding requirements. 

Employers are permitted to ask about criminal background at other steps in the hiring process When they do, they must include a standard notice on the form indicating that certain information does not need to be provided, and the requirements of the notice are updated by the new law.  Effective January 1, 2023, employers asking about criminal background must notify applicants in clear and conspicuous language:

(1) That the applicant is not required to disclose the existence of any erased criminal history record information, (2) that erased criminal history record information are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon or criminal records that are erased pursuant to statute or by other operation of law, and (3) that any person with erased criminal history record information shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

Our team of labor and employment attorneys can assist employers in complying with the complicated landscape of background check laws and ensuring compliance with all applicable labor and employment laws.