When a background check shows a criminal record that is wrong, outdated or someone else's, federal law gives you real tools. The company that made the report must use reasonable procedures for accuracy. You can get a copy, dispute the record, and the company generally must reinvestigate within 30 days and fix or remove what it cannot verify.
A person may learn of a wrong record when a job offer is pulled back, a recruiter suddenly goes quiet, or a report lists a charge that was dismissed years ago or one that belongs to a stranger with a similar name. It is unsettling to be judged by a record that is not true, and harder still not to know whether anyone has to correct it. This page walks through the Fair Credit Reporting Act (FCRA), the federal law that governs background-check reports, and what it requires of the companies that prepare them.
What the Fair Credit Reporting Act Says About Background Check Accuracy
The FCRA covers far more than credit scores. A consumer report is any communication by a reporting company "bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living" used or expected to be used as a factor in deciding a person's eligibility for things including credit, insurance or employment, under 15 U.S.C. § 1681a(d). A consumer reporting agency is a company that compiles that kind of information and sells reports to others. The CFPB notes that hundreds of companies provide employment background checks and qualify as consumer reporting agencies. A furnisher is a person or business that supplies information about a consumer to a reporting agency.
The central 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."
Employment reports carry an extra rule. Under 15 U.S.C. § 1681k(a), an agency reporting public records likely to hurt someone's chances of employment must either notify the consumer at the time, with the name and address of the recipient, or keep strict procedures to make sure the record is complete and up to date. Under the strict-procedures option, items of public record relating to arrests, indictments, convictions, suits, tax liens and outstanding judgments are considered up to date if the current public record status of the item at the time of the report is reported.
Time limits also apply. Under 15 U.S.C. § 1681c(a), generally, except as subsection (b) of that section authorizes, certain old items may not be reported, and records of convictions of crimes are excluded from the seven-year limit on other adverse items. Under 15 U.S.C. § 1681c(b), those limits do not apply to a consumer credit report used in connection with a credit transaction or life insurance underwriting of $150,000 or more, or the employment of an individual at an annual salary that equals, or may reasonably be expected to equal, $75,000 or more.
How Criminal Record Errors End Up on Background Checks
Errors can come from the way records are gathered. A few possible patterns follow.
Mixed files. A mixed file is a report that contains information belonging to a different person, often because two people share a similar name or identifying details. When a search matches records on name and date of birth instead of something unique such as fingerprints, a stranger's conviction, or a relative's, can land in the wrong report.
Expunged or sealed records. A court may have ordered a record expunged or sealed, but a commercial database copied before that order may still carry it.
Missing or wrong dispositions. An arrest can appear with no outcome listed, or a dismissed charge can be shown as a conviction. The difference can matter to an employer reading the report.
Outdated items. An item that the FCRA's time limits keep off a report can keep appearing if the agency's procedures do not filter it out.
Courthouse data errors. A typo in a court's own records, such as a wrong birth date or a misspelled name, can flow into the databases screening companies buy.
Each of these is the kind of problem the accuracy rule in 15 U.S.C. § 1681e(b) addresses. Whether a particular error means an agency's procedures fell short depends on the facts.
Your Right to Know: Adverse Action Notices and Free Report Disclosure
The first protection is permission. The FCRA generally bars an employer from getting a consumer report unless it gave a clear written disclosure, in a document consisting solely of that disclosure, and the consumer authorized it in writing, under 15 U.S.C. § 1681b(b). Under 15 U.S.C. § 1681b(b)(2)(B)-(C), different rules apply when a person applies by mail, telephone, computer or similar means for certain transportation positions.
Adverse action means a decision against a person, such as not hiring them, based in whole or in part on a consumer report. Under 15 U.S.C. § 1681m(a), a person who takes adverse action based in whole or in part on information in a consumer report must give the consumer oral, written or electronic notice of it, along with other items the section lists, including the name, address and telephone number of the consumer reporting agency that furnished the report and notice of the consumer's right to a free copy of the report and to dispute its accuracy.
Before that final step, the FTC explains that an employer must give you a copy of the report and a "Summary of Rights" before deciding not to hire, keep or promote you because of something in it. That gap is the moment a person can spot an error and raise it. The federal provision, 15 U.S.C. § 1681b(b)(3)(A), requires the copy and the description of rights before the adverse action is taken but sets no waiting period; state law may add rules.
A consumer may request their file disclosure from an agency under 15 U.S.C. § 1681g. Under 15 U.S.C. § 1681j(b), an agency that maintains a file on the consumer must provide that disclosure without charge if the consumer asks within 60 days after receiving a notification under 15 U.S.C. § 1681m, such as the adverse action notice described above.
How to Dispute an Incorrect Criminal Record Under the FCRA
The dispute right belongs to the consumer. Under 15 U.S.C. § 1681i(a)(1)(A), subject to exceptions in that section, when a consumer notifies the agency directly, or through a reseller, that an item in their file is incomplete or inaccurate, the agency must, free of charge, conduct a reasonable reinvestigation, meaning a fresh look at whether the disputed information is wrong. It must record the item's current status or delete it within 30 days of receiving the dispute.
That period may be extended by up to 15 more days if the consumer sends relevant information during the 30 days, under 15 U.S.C. § 1681i(a)(1)(B). The extension does not apply if, during the first 30 days, the item is found inaccurate or incomplete or cannot be verified.
Within five business days of receiving the dispute, the agency must notify whoever provided the disputed item and pass along all relevant information, under 15 U.S.C. § 1681i(a)(2)(A). That furnisher then must investigate, review what the agency sent, report the results, and modify, delete or permanently block an item found inaccurate, incomplete or unverifiable, under 15 U.S.C. § 1681s-2(b). The CFPB's model summary states that inaccurate, incomplete, or unverifiable information must be removed or corrected, usually within 30 days, though an agency may continue reporting what it has verified.
A dispute often includes court records showing a dismissal or expungement, proof of identity, or papers showing the record belongs to someone else. The FTC describes including supporting documentation and asking for a corrected report to be sent to the employer. The dispute steps for credit files work the same way, as explained in wrong information on a credit report.
What Happens When a Record Is Expunged or Sealed
An expungement or sealing order changes the court's record. Whether and how it reaches a commercial database that copied the record earlier depends on the order and on state law, and an old case may still appear on a report.
The FCRA's time limits work alongside this. Under 15 U.S.C. § 1681c(a), generally, except as subsection (b) of that section authorizes:
- civil suits, civil judgments and records of arrest may not be reported once they antedate the report by more than seven years from the date of entry, or until the governing statute of limitations has expired, whichever is longer, under § 1681c(a)(2); and
- any other adverse item older than seven years may not be reported, other than records of convictions of crimes, under § 1681c(a)(5).
That last phrase matters. The seven-year limit in § 1681c(a)(5) does not cover convictions, so whether an old conviction may appear can turn on other facts, including an expungement and state law.
A consumer who has an expungement order may include a copy in a dispute as documentation that the record should not be reported as it is. Whether a particular expunged record must be removed depends on the facts and the law that applies. State law may add protections, and it differs from state to state. The broader rules are covered in this site's overview of the Fair Credit Reporting Act.
What the FCRA Makes Potentially Available When Errors Cause Harm
The FCRA lets a consumer bring a lawsuit against a person who fails to comply with its requirements, which can include consumer reporting agencies and furnishers, under two sections that turn on the type of failure. Under 15 U.S.C. § 1681s-2(c), those two sections generally do not apply to a violation of the furnisher duty in § 1681s-2(a) to provide accurate information.
For willful noncompliance, 15 U.S.C. § 1681n(a) makes a person liable for "any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000," plus "such amount of punitive damages as the court may allow," and, in a successful action, the costs of the action together with reasonable attorney's fees as determined by the court.
For negligent noncompliance, 15 U.S.C. § 1681o(a) provides actual damages sustained as a result of the failure and, in a successful action, 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 wrong record on a report is not by itself a violation. Whether an agency's procedures were reasonable, whether a failure was negligent or willful, what harm it caused, and whether any remedy is available all depend on the facts and on what a court decides.
If You'd Like a Consumer Rights Case Review
A wrong criminal record on a background check usually involves several moving parts: the screening company that prepared the report, the court or data source behind the record, the employer's notices and their dates, and any dispute already sent and the answer that came back. This page does not cover expungement procedures in any particular state, or credit reports used for loans as distinct from employment screening; the credit reporting dispute page addresses those disputes.
A consumer rights case review about a background-check error like this can be requested through Federal Consumer Rights.
