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Background Check - Wrongfully Denied Employment?

Discussion in 'Hiring, Applications, Background Checks' started by JaxCevaal, May 11, 2016.

  1. JaxCevaal

    JaxCevaal Law Topic Starter Guest

    Jurisdiction:
    Texas
    I applied to Amazon Flex in the Dallas TX market. They have rejected me for my past convictions.
    I have read that "If a position pays $75,000 or less per year, criminal arrests and convictions that are more than seven years old cannot be included in a consumer report."
    My past convictions from 2008 were listed on the report I and they received. I have had no convictions since then. They have specifically told me that I am not eligible for employment based on my convictions/driving record. I know my driving record is clean. What can I do?

    Also, what does this mean in the FCRA?
    "FCRA requires employers to send you certain notices if it decides not to hire or promote you based on the information in the CRA report."
    Does that mean they are supposed to tell me exactly why they won't hire me? I'm confused. Do I have any rights at all for finding a decent job?
     
    jaxcevaal likes this.
  2. adjusterjack

    adjusterjack Super Moderator

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    You obviously didn't read that in the Fair Credit Reporting Act.

    605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]
    (a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:
    (2) Civil suits, civil judgments, and records of arrest that from date of entry, antedate the report by more than seven years or until the
    governing statute of limitations has expired, whichever is the longer period.
    (5) Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.


    Note the phrases emphasized.

    Arrest records drop off after 7 years but not convictions.

    https://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reporting-act.pdf

    And you didn't read that in the Texas version of the FCRA which is in Section 20.05 of Title 2 - Competition and Trade Practices - Chapter 20 - Regulation of Consumer Credit Reporting Agencies:

    Sec. 20.05. REPORTING OF INFORMATION PROHIBITED. (a) Except as provided by Subsection (b), a consumer reporting agency may not furnish a consumer report containing information related to:
    (4) a record of arrest, indictment, or conviction of a crime in which the date of disposition, release, or parole predates the consumer report by more than seven years.


    So, you may have been convicted in 2008 but, in Texas, it's the date of disposition, release, or parole that counts, not the date of conviction.

    2015 Texas Statutes :: BUSINESS AND COMMERCE CODE :: TITLE 2 - COMPETITION AND TRADE PRACTICES :: CHAPTER 20 - REGULATION OF CONSUMER CREDIT REPORTING AGENCIES




    Not necessarily "exactly why" only that they declined you based on information from .... However, in this case you already know "exactly why." It's because of your criminal convictions.
     
    Last edited: May 11, 2016
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  3. jaxcevaal

    jaxcevaal New Member

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    I guess this part is Texas specific:
    Pulled from AVVO post from another labor attorney:
    "FCRA places no limits on reporting convictions. However, Texas does limit the reporting of convictions when the salary of the prospective job is less than $75,000 and it is not within a few key fields (such as medical care or school bus drivers). Texas law permits a CRA to report convictions, jail terms and parole if any part of that activity occurred within the last seven years. Unfortunately that means Texas CRAs can report your probation until the late date of probation is more than seven years old or if the job you applied for removes that limit. See Texas Business & Commerce Code 20.05."

    None of my other past convictions prior to this one was listed on the report, felony or otherwise. I was discharged from probation on the charge in question over 7 years ago.

    So I would like to know how this specifically applies to me. I got my report from AccurateBackground. Should filing a dispute and getting it removed land me the job? And if it doesn't, is there anything I can do about it?
     
  4. d1amund

    d1amund Member

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    You think filing a dispute will reverse Amazon's decision to not hire you? I think someone here recently said "not a snowballs chance in hell". I suggest you seek other employers who may not be as thorough with their background checks.
     
  5. jaxcevaal

    jaxcevaal New Member

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    Are you even an attorney..? I'm pretty sure it's against Texas law for this offense to even be reported TO Amazon, and if getting it removed can't get me hired, I should be able to do something about being reported inaccurately (ie: lawsuit against the reporting agency?) I don't know, but I have to be protected by the law one way or another. Hopefully someone can shed some legal light on this? I'm not looking for a "big payoff" I'm looking for a job. If I was reported wrongly and it cost me a good paying job, you're darn right I want something done about it! That's potential good money GONE while I sit with a half-wit job that I'm more than qualified for because of poor background checks showing inaccurate information! It's more than one job that this would have cost. It could be every job I have applied for!
     
  6. adjusterjack

    adjusterjack Super Moderator

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    What was the exact date that your probation was completed and you were officially released. Be accurate. Look it up. Give us the date on the paper. Don't guess.
     
  7. d1amund

    d1amund Member

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    No, I'm working on that. You may feel slighted and that is possibly the case but here's the issue. You claim you were denied employment with Amazon Flex, correct? Amazon Flex is a service whereby you deliver Amazon products to their customers homes in your own vehicle. Jobs such as this require a criminal and motor vehicle background check.

    In-home service and residential delivery companies (that's exactly what Amazon Flex is) must perform a complete criminal history background check through DPS or a private vendor on any employees or associates sent by the companies into customers' homes (including attached garages or construction areas next to homes), or else confirm that the persons sent into customers' homes are licensed by an occupational licensing agency that conducted such a criminal history check before issuing the license. The records must show that during the past 20 years for a felony, and the past 10 years for a class A or B misdemeanor, the person has not been convicted of, or sentenced to deferred adjudication for, an offense against a person or a family, an offense against property, or public indecency. A check done in compliance with these requirements entitles the person's employer to a rebuttable presumption that the employer did not act negligently in hiring the person. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004.

    I put certain points in bold for clarity.

    Furthermore, your statement and interpretation of the law of "does not apply to those making less than 75,000" could be rebutted by stating the Flex employee averages (per their marketing) 20 dollars per hour and is able to work up to 12 hour shifts. If you worked 12 hours shifts every day of the week...setting your own Flex schedule...you would make over 75,000 dollars.

    So, as adjusterjack queried and I'll expand on that...what were the convictions and timelines?
     
  8. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I read too quickly. @adjusterjack states that the FCRA allows the reporting of convictions that are older than 7 years. The attorney's statement agrees but adds that Texas law limits what can be provided so that it would exclude convictions greater than 7 years old. So I took a look at Texas Business and Commerce Code Section 20.05.

    Sec. 20.05. REPORTING OF INFORMATION PROHIBITED. (a) Except as provided by Subsection (b), a consumer reporting agency may not furnish a consumer report containing information related to:

    (4) a record of arrest, indictment, or conviction of a crime in which the date of disposition, release, or parole predates the consumer report by more than seven years; or

    (5) another item or event that predates the consumer report by more than seven years.

    (b) A consumer reporting agency may furnish a consumer report that contains information described by Subsection (a) if the information is provided in connection with:

    (3) the employment of a consumer at an annual salary that is or may reasonably be expected to be $75,000 or more.

    Italics emphasized. So yes, there appears to be a limitation on what can be provided for a background check under this Texas statute. However, the exceptions were never mentioned and if you reasonably fall within section 20.05(b)(3) then it's permissible. It would appear that @d1amund has made a very good argument that you'd probably face a legitimate challenge that your reasonable expectations could be to earn more than $75,000 -- without even addressing the other issues raised.
     
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  9. army judge

    army judge Super Moderator

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    I'm an attorney licensed in Texas, and what you've been told is spot on.

    Beyond all that, an employer isn't required to interview you, by law, much less provide you with an explanation as to why you weren't hired.

    I've advised clients to only respond affirmatively to employees that will be offered employment. To those that won't be hired, it's best to remain silent. It eliminates the confusion you're excited about.
     
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  10. jaxcevaal

    jaxcevaal New Member

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    Not sure how to quote on here. But as per the $75,000 per year, they allow 4 hour blocks of delivery/person/day and don't have work available every day. (Had an online webinar pre-screening/orientation with Flex prior to the background check) A person can only make $72 per day they work and will never exceed the $75,000 until they allow people to work 12 hour days AND have them working that 12 hours 365 a year. So the job is definitely not going to make anywhere's near $75k salary.

    Flex has already told me that I was denied due to my background check. This doesn't put my dispute with Flex, but with AccurateBackground (who preformed the background check). I have already contacted them to start a dispute.

    The exact date (on the public records website showing court activities and case details) shows that I was discharged from probation on 4/10/2009. That is more than 7 years past. Upon talking with AccurateBackground, they informed me that it would be another year before it's removed, as I was placed on two years of probation. I had been discharged after only 1 year (early discharge).

    The dispute is in process. Not sure how long it will take. Not sure what to expect. And it sounds like there's a thousand CRAs that could prevent me from obtaining employment for the same issue. If everybody I apply to over the next year uses a different CRA I could have serious issues finding a job for something they shouldn't even be reporting. What can I do?
     
  11. adjusterjack

    adjusterjack Super Moderator

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    You can start by getting all three of your credit reports from www.annualcreditreport.com and see if the item is on them. There are three credit bureaus where all those background checkers are getting their basic information from.

    Beyond that you have the option of suing AccurateBackground for monetary damages. Consult an attorney about that.

    Keep in mind, however, that there are ways to easily discover criminal records without buying background checks. The stigma of that record may follow you around for the rest of your life.
     
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  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Thanks for the follow up. I'm very sympathetic and hope that there is some type of reform so that it allows you to pick up close to where you left off with a bona fide second chance. To some measure I do support the right to be forgotten in the EU. However, as written, the breadth and compliance requirements are unrealistic.

    The above is good advice on where to start by obtaining proof of what is actually on your credit report. And speaking to an attorney is also a good idea. If there is a clear violation of the law you might be able to get an attorney to take the case on contingency, which will probably net you more compensation in a settlement than trying to do it yourself. In this instance it appears there is an established company (with reasonably deep pockets) which should be able to net a settlement amount that might make this a risk an attorney may want to take and could settle quickly for a reasonable sum.

    And while @adjusterjack does raise the issue of private data collection companies (which may eventually be subject to laws like "The Right to be Forgotten"), at the moment you may wish to look into expungement of your convictions. Without an attorney reviewing your issues it's impossible to advise of all options but these are at least the steps you can take to help yourself and get closer to achieving the clean record you hoped you'd have upon release. Best of luck.
     
  13. ronnie78

    ronnie78 New Member

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    im going through the same thing right now.so to clarify what is law and whats not...the fcra law was amendment.it first had a statue of limitation of 7years ...witch at the time covered not only arrest but (conviction) among other things...at time it was admended the (conviction)part was now set forth as no limitation and could be reported all the way back to your 18th birthday...catch part is is that the fcra makes aware that just because fedral law has no reporting limitation on conviction your state still might..texas is one of many that still go by 7 year limitation of conviction...and it startes from release ,parole ,or disposal date..when at the time befor admendment was put forth conviction 7 year started at the time of entry..the only way a credit report agency could do back further is if the job u would work for was 75000 or more potential income..but if your employer was to check your report in house them selves then no limitation is there...but if its cra there overseen by the fcra guidelines....


    the question about is there a way how an employer should proceed after your background comes back and doesn't want to hire you because of info on it...
    Yes....1.befor an adverse action is taken
    2.a pre-adverse action must be taken
    3.you must receive a letter stating a reason
    4.a copy of the credit report
    5.your rights to dispute any info on it how to
    6.the number for the cra who did the check and a small time frame...

    so if those steps were not done....like me im gonna sue..
    thanks



    one other thing... always take into consideration the type of job your applying for...there are other loop holes that certent jobs do require more on a background check. in my case i was gonna be no one special... general labor.. so if your applying for say insurance rep doctor or ect...if a higher clearance is needed beaware there jobs that require longer background checks do to security riskof some sort
     
    Last edited: Sep 11, 2017
  14. ElleMD

    ElleMD Well-Known Member

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    Your post is very difficult to read, though the OP posted this more than a year ago. I believe you are trying to convey the information found here Using Consumer Reports: What Employers Need to Know

    This assumes that the employer used a third party to obtain the information and did not perform the search themselves.
     
  15. adjusterjack

    adjusterjack Super Moderator

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    Good luck with that.
     
  16. army judge

    army judge Super Moderator

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    No matter what anyone may tell you, once you get that felony conviction (or certain misdemeanor convictions) you'll have altered the trajectory of your life forever.

    It doesn't matter what I think about it, because no one cares what the hell I think.

    What matters is that those who make these decisions have decreed that if you break their laws, you'll be screwed far beyond the time you spend in a cage.

    Most felons eventually do get out of that cage.

    Then they discover that unlike the 18th and 19th centuries, you can't change your name, become a better person, and reinvent your life.

    You'll be branded forever with the mark of a felon.

    As I admonish regularly, for your sake, OBEY all of their laws.

    You might not like their laws, but breaking their laws will affect you for the rest of the days you walk this earth.
     

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