When someone else's criminal record appears on your background check, federal law treats it as an accuracy problem. The Fair Credit Reporting Act requires reasonable procedures to assure maximum possible accuracy. It also lets you see the report, dispute the record and have it reinvestigated, generally within 30 days.
A person may learn of it when a job offer goes quiet or an apartment application comes back denied, and then a report arrives listing a conviction, a pending charge or an alias they have never seen. It is jarring to be judged by another person's history. The usual questions follow: how this happened, who is responsible, and whether the record can be removed before it costs another opportunity.
This page walks through the federal rules across the United States that govern background screening companies. It covers how a "mixed file" happens, what the law requires of the company that prepared the report, how a dispute works, and what remedies the law makes potentially available.
What a Mixed-File Error Is and How It Happens
A mixed file is a consumer report that contains information belonging to a different person. It can happen when a reporting company matches records using partial identifiers instead of complete ones.
Two more terms come up throughout this page. A consumer reporting agency is a company that gathers or evaluates information about people in order to sell reports about them to others. The CFPB describes credit bureaus as companies that compile and sell credit reports. The same page notes that specialty reporting companies may collect other information, including employment and tenant history. A consumer report is the report such a company provides about a person's credit, character, reputation or way of living, used for decisions including jobs, housing or credit. According to the CFPB, hundreds of companies provide employment background checks and qualify as consumer reporting agencies.
Mixed files can trace back to causes such as:
- similar or identical names
- a shared date of birth
- partial overlap in Social Security numbers
- indexing errors in courthouse records
- errors in how data from many sources is combined
A mixed file differs from identity theft, although identity theft can also put false records on a report.
What the FCRA Requires of Consumer Reporting Agencies
The core accuracy rule is short. Under 15 U.S.C. § 1681e(b), "Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."
The statute asks for reasonable procedures to assure maximum possible accuracy, and it applies to criminal record information like any other entry. The information concerned is that about "the individual about whom the report relates," meaning the person the report is about.
Employment reports carry an added rule. Under 15 U.S.C. § 1681k(a), a consumer reporting agency that reports public record information likely to hurt a person's chances of employment must do one of two things. It may notify the consumer, at the time the information is reported, that public record information is being reported, along with the name and address of the person receiving it. Otherwise, it must keep strict procedures designed to make sure the information is complete and up to date. Under the strict-procedures option, the statute treats records of arrests, indictments, convictions, suits, tax liens and outstanding judgments as up to date if their current public record status at the time of the report is reported. This rule does not apply where a federal agency uses a report for employment purposes after the written national-security finding the statute describes.
Whether a particular report fell short of these standards depends on the procedures the company actually used and the facts of the error.
Your Right to See Your Background Check Report
Before an employer decides not to hire, keep or promote a person because of something in a background check report, the FTC explains, it must give you a copy of the report and a "Summary of Rights" under the FCRA. Adverse action means a decision against a person based on a report, such as not hiring them, denying housing or turning down credit.
Once a user of a report takes adverse action based in whole or in part on it, 15 U.S.C. § 1681m(a) requires the user to give the consumer several things, including:
- notice of the adverse action
- any numerical credit score the user used in taking the action, and related score information
- the name, address and telephone number of the consumer reporting agency that furnished the report
- a statement that the agency did not make the decision and cannot explain the specific reasons for it
- notice of the right to a free copy of the report within 60 days and the right to dispute its accuracy or completeness
That notice tells a person which company to contact. A background screening company is often not one of the three nationwide credit bureaus, and a consumer may request the report directly from the company named in the notice.
Under 15 U.S.C. § 1681j(b), any consumer reporting agency that keeps a file on a consumer must give a free disclosure if the consumer asks within 60 days of receiving a notification under 15 U.S.C. § 1681m, such as the adverse action notice. Section 1681j(a) separately requires nationwide consumer reporting agencies, and nationwide specialty consumer reporting agencies, to make all disclosures once during any 12-month period on request without charge; for the nationwide credit bureaus the request must be made through the centralized source the section describes. Under 15 U.S.C. § 1681a(x), a nationwide specialty agency is one that keeps nationwide files relating to medical records or payments, residential or tenant history, check writing history, employment history or insurance claims. The CFPB's page on employment background checks says a consumer can get free copies of reports every 12 months from many specialty consumer reporting agencies, while others may charge a fee.
How to Dispute a Criminal Record That Is Not Yours
A dispute starts the reinvestigation process. Reinvestigation is the review a consumer reporting agency must carry out when a consumer challenges the accuracy or completeness of information in their file.
Under 15 U.S.C. § 1681i(a)(1)(A), subject to exceptions in that section, once the agency receives a dispute directly or through a reseller, it must, free of charge, conduct a reasonable reinvestigation. It must either record the current status of the information or delete the item before the end of 30 days from receiving the notice. The period may be extended by up to 15 days if the consumer sends relevant information during those 30 days. The extension does not apply if the information is found inaccurate or incomplete, or cannot be verified, within the 30 days. Where the dispute follows a free annual report, 15 U.S.C. § 1681j(a)(3) sets a 45-day period instead.
Within 5 business days of receiving the dispute, 15 U.S.C. § 1681i(a)(2) requires the agency to notify the furnisher, meaning the person or company that supplied the information. The notice must include all relevant information the consumer sent. The agency must also review and consider all relevant information the consumer submits during the dispute period.
A dispute about a mixed file may include the consumer's full name, address and date of birth, a copy of government ID, and a copy of the report. It may also identify the specific record that is not theirs and include any proof of identifying details that differ from the other person's. The FTC notes that supporting documentation can be included with the request.
An agency may end a reinvestigation it reasonably finds frivolous or irrelevant, including when a consumer gives too little information. It must explain why within 5 business days and say what information it needs.
What Happens After a Dispute: The CRA's Obligations
Under 15 U.S.C. § 1681i(a)(5), if a disputed item is found inaccurate or incomplete or cannot be verified, the agency must promptly delete or modify it. It must also promptly notify the furnisher of the change. The CFPB's summary of FCRA rights puts it plainly: such information must be removed or corrected, usually within 30 days. That summary also states that an agency "may continue to report information it has verified as accurate."
That last point is often the hardest part for someone who knows a record is not theirs. If the agency stands by an entry after its reinvestigation, the CFPB states that a consumer generally has the right to add a statement to the report disputing the information.
Where a report is corrected, the FTC describes asking the background reporting company to send the corrected report to the employer and tell the employer about the mistake. The agency must also give the consumer written notice of the results of the reinvestigation not later than 5 business days after completing it, under 15 U.S.C. § 1681i(a)(6)(A). The broader process is covered in this site's page on wrong information on a credit report.
When the FCRA's Remedies May Apply
The FCRA's civil remedies turn on whether a failure to comply was willful or negligent. Whether any failure occurred at all depends on the facts.
For willful noncompliance, 15 U.S.C. § 1681n(a) makes a person liable to the consumer for the sum of three items. The first is any actual damages sustained as a result of the failure, or damages of not less than $100 and not more than $1,000. The second is any punitive damages the court may allow. The third, in a successful action, is the costs of the action with reasonable attorney's fees as determined by the court.
For negligent noncompliance, 15 U.S.C. § 1681o(a) provides for actual damages sustained as a result of the failure. In a successful action, it also provides for costs and reasonable attorney's fees as determined by the court.
Both sections also provide that, on a finding that an unsuccessful pleading, motion or other paper was filed in bad faith or for purposes of harassment, the court shall award the prevailing party attorney's fees reasonable in relation to the work expended in responding to it. A mistaken record does not by itself establish a violation or damages. Each of these remedies depends on what a court finds about the conduct and its effect. The stages of such a case are explained in this site's guide to how consumer lawsuits work.
Filing a Complaint with the CFPB or FTC
Federal agencies offer their own channels, separate from a dispute or a lawsuit. The CFPB states that a consumer can submit a complaint to the CFPB about a problem with credit reporting. The FTC's page on employer background checks includes a section on reporting to the FTC.
These are agency processes. According to the CFPB's summary of rights, states may also enforce the FCRA, and many states have their own consumer reporting laws. The FTC adds that city and state laws may limit when employers can ask about criminal history. Those rules differ from state to state. An overview of the statute as a whole is on this site's Fair Credit Reporting Act page.
If You'd Like a Consumer Rights Case Review
A mixed-file problem usually involves more than one company and a chain of dates. There is the screening company that prepared the report, the employer or landlord that used it, the adverse action notice, and any dispute and its answer. This page explains the federal framework. It does not cover tenancy disputes or employment claims beyond the background report.
A consumer rights case review about a background check like this can be requested through Federal Consumer Rights. For related reading, see this site's page on credit report error rights.
