FCRA Violations Lawyer: When Expunged Records Show Up On Background Checks

After years of staying out of trouble or even having charges dropped, most people are relieved to finally obtain an order of expungement and/or sealing from the court clearing their names. Feeling secure that their criminal record is finally clear, these individuals are excited to apply for a new job or an apartment. Despite the court order, however, they are upset to learn that the expunged case was revealed on a background check, and further that their opportunity for a new job or home has been denied as a result.

Although most people do not anticipate that their background check report will contain mistakes or inaccuracies or reveal expunged or sealed records, errors on background checks, unfortunately, are fairly common. These mistakes can and do prevent people from obtaining jobs or apartments or other opportunities. 

Despite the importance of the accuracy of criminal background check reports, background check companies routinely make mistakes with grave consequences for job seekers.  These mistakes include: 

  1. Reporting inaccurate or incomplete information, such as omitting disposition data;
  2. Mismatching individuals, by reporting information about a different person altogether;
  3. Reporting outdated information, such as when a criminal record has been expunged or sealed; 
  4. Displaying data in a misleading manner, such as when a report lists the same offense multiple times; and/or
  5. Misclassifying the type of offense.

One of the most prejudicial accuracy issues is the reporting of expunged or sealed records. Unlike some of the other types of errors listed above, revealing sealed or expunged data is virtually impossible to dispute with the potential landlord or employer. For example, if the background check company confused an applicant with another individual, the applicant can prove that person is not them. Likewise, if the applicant was exonerated of the reported record, they can prove their innocence.  When it comes to expunged records, however, applicants are unable to prove that the charges were false.  Thus, it is impossible to “unring the bell” in these circumstances. 

There are many reasons that background check companies report expunged or sealed offenses. One of the main reasons these mistakes occur is due to the fact that many background check reporting companies obtain their data in bulk and do not update it. In fact, many background check companies have no procedures in place to learn of expunged cases, short of waiting for the applicant to file a “dispute.” 

Since criminal background check information is taken very seriously, these mistakes can result in applicants being denied employment, housing, loans, etc. If, however, your background check information is inaccurate, you may be entitled to damages under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681, et seq. 

Your Rights Under the Fair Credit Reporting Act (FCRA)

Background check companies that report expunged or sealed cases thwart public policy and prevent people from moving forward. But it does not have to be that way. In fact, when background check companies report expunged cases, they violate the Fair Credit Reporting Act (FCRA). 

The FCRA governs the accuracy of criminal background checks prepared by commercial background check companies.  While there is very little case law developing this area of law within the context of expunged or sealed records, there is little doubt that the FCRA prohibits background check companies from reporting outdated information, such as expunged or sealed records. 

More specifically, pursuant to 15 U.S.C. §1681e(b), background check companies must use “reasonable procedures” to ensure “maximum possible accuracy” of the information in the report. 

In addition, pursuant to  15 U.S.C. §1681k, background check companies reporting public record information for employment purposes that “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either: (1) notify the person that the public record information is being reported and provide the name and address of the person that is requesting the information at the time that the information is provided to the user; or (2) maintain “strict procedures” to make sure that the information it is reporting is complete and up to date. 

In addition, pursuant to the FCRA:

  • Employers must obtain your written consent prior to running a background report on you;
  • You must be notified if a background check has been used against you;
  • You have the right to a copy of your background report;
  • You have the right to dispute errors or inaccuracies on your background report; and/or
  • Within 30 days of filing a dispute with the background check company, mistakes or errors must be corrected.

Thus, if a background check company reports expunged or sealed criminal record information and should have known better (for example, by more frequently updating its data or by verifying the criminal record information through alternate means), the FCRA is implicated and a case can be made that both U.S.C. §1681e(b) and 15 U.S.C. §1681k have been violated. 

FCRA Violations Lawyers: Filing a Lawsuit Over Inaccurate Background Check Information

Revealing expunged or sealed records is one of the most damaging mistakes that a background check company can make. Under the FCRA, however, you have the right to sue the background check company for any damages caused by the mistakes that they reported on your background report. Numerous individual and class action lawsuits have been brought pursuant to the FCRA to challenge a background check company’s reporting of expunged or sealed cases. 

Expungement or sealing is intended to provide you with a fresh start. When background check companies reveal this information, they deprive you of your legal right to a second chance. If you were denied housing or employment due to a background check company’s reporting of expunged or sealed records, contact the FCRA violations lawyers at Katherine O’Brien Law today for a free consultation at (856) 832-2482. 



Katherine O'Brien

New Jersey expungement lawyer Katherine North O’Brien has been practicing expungement law for her entire career and has handled hundreds of complex criminal record expungements. She has also assisted in the drafting of briefs on expungement issues before the New Jersey Supreme Court. Katherine is passionate about helping people clean their criminal records and, therefore, started Katherine O’Brien Law to offer those with criminal convictions a fresh start.