Can I sue for a false background check report?

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The Fair Credit Reporting Act (FCRA) provides you with specific rights when an employer or potential employer conducts a background check about you and receives a background check report that includes false information. Ultimately, you may end up needing to file a federal lawsuit pursuant to the FCRA if you lose your job or are not offered employment because of an inaccurate background check report. As a practical matter, you should take the following steps to address the inaccuracy before racing to file a case in federal court.  

Step 1:  Speak with your employer/potential employer 

The FCRA does not require your employer or potential employer to hold open a job you were offered if that offer is rescinded due to a background check report that includes inaccurate information about you (such as a criminal charge or conviction).  Still, you are entitled to receive a copy of the report that led to the adverse action (withdrawal of the job offer).  Once you know the inaccuracy on the background check report, you should immediately explain the problem to the employer and that you plan to dispute the erroneous report with the consumer reporting agency that prepared the report. Hopefully, the employer will give you time to dispute the error and the false background check will be quickly corrected.

Step 2:  Dispute the background check report 

In fact, you should immediately make two disputes to the CRA that reported false information about you. Call the background check company and explain the error and that the error may cost you a job.  Then send a written dispute by certified mail, return receipt requested (so you can prove that you sent a dispute to the background check company).  Be sure you explain in your written dispute exactly what is wrong and why it is wrong. For example, if your background check report says you are a convicted arsonist from Wisconsin, make sure you specifically state (assuming that all of the following points are true) that (a) you have never been arrested, (b) you have never been charged with any criminal offense, let alone arson, (c) you have never been convicted of any crime including but not limited to arson, and (d) you have never lived in Wisconsin.  While including all of the foregoing points may seem duplicative, you want to make it absolutely clear to the consumer reporting agency that provided the background check report that the report is inaccurate. 

Step 3: If you have not already done so, consult with a consumer attorney 

The Fair Credit Reporting Act requires the consumer reporting agency to complete a “reasonable reinvestigation” within 30 days. If the CRA cannot affirmatively verify the disputed information in your background check report, the information must, as a matter of law, be deleted. Unfortunately, this does not always happen. And even if the false information is deleted, it may be too late to salvage your job. If your report is not corrected following a dispute and/or you are harmed by the report (i.e., you lost a job or job opportunity and/or suffered stress and embarrassment due to the defamatory nature of the report), you may have a strong claim under the Fair Credit Reporting Act. Make sure you consult an experienced FCRA lawyer. 

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At Sherman & Ticchio, we focus on your individual needs to help you correct errors on your credit reports or background check reports. We are here to listen to you and help you navigate the legal system.

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Sherman & Ticchio is committed to helping you address your credit reporting and background check reporting issues in New York.

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