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Are criminal records ‘consumer reports’?

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in Employment Background Check,Human Resources

Q. I understand that the Fair Credit Reporting Act (FCRA) requires disclosure to and authorization from job applicants prior to obtaining consumer reports concerning these individuals. My company obtains criminal background records on all applicants. Are these records considered “consumer reports” under the FCRA?

A. Employers may use consumer reports when they hire employees, as well as when they promote and reassign them if they comply with sections 604, 606, and 615 of the FCRA.

The definition of a “consumer report” under the FCRA is broad and includes any information about an individual’s “character, general reputation, personal characteristics or mode of living.” Criminal background records involve these characteristics.

The FCRA requirements are applicable only when the information is obtained by a consumer reporting agency. Therefore, a criminal background check provided by a consumer reporting agency to the employer would constitute a consumer report and would implicate the disclosure and authorization requirements under the FCRA.

However, an employer that conducts its own criminal background checks through a county courthouse or other government authority would not be required to follow the requirements of the FCRA.

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