SHRM Says "FCRA’s Seven-Year Reporting Window Begins with Charge, Not Dismissal"
The seven-year limit for reporting criminal charges on background checks begins when the charges are filed, not when they're dismissed, a federal appeals court recently ruled, meaning employers should know that criminal charges exceeding the seven-year limit shouldn't appear in employment screens.
The 9th U.S. Circuit Court of Appeals ruled May 14 that the measuring period for a criminal charge runs from the date of entry rather than the date of disposition under the Fair Credit Reporting Act (FCRA). The FCRA prohibits background screening firms from reporting any arrest record or adverse non-conviction information older than seven years. The 9th Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Under the Ninth Circuit's interpretation, employers should also know that background checks shouldn't include later events such as dismissals, even if they are within the seven-year window.
"At issue in the [Ninth Circuit case] Moran v. The Screening Pros was the appropriate measuring period for reporting certain criminal records that did not result in a conviction," said Pamela Devata, a partner in the Chicago office of Seyfarth Shaw.
Specifically, the court was deciding whether the seven-year period ran from the entry date of the plaintiff's criminal misdemeanor charge, or from the date that charge was dismissed four years later.
"This interpretation of the reporting rules is consumer-friendly in that it narrows the reporting window and gives specific guidelines of how to treat a non-conviction criminal charge that was ultimately dismissed," said Timothy J. St. George, an attorney in the Richmond, Va., office of Troutman Sanders.
St. George explained that the appellate court reversed the district court's holding that it was the charge's dismissal that triggered the seven-year reporting period under the FCRA. "The court provided a lengthy analysis finding a charge is an adverse event upon entry, so it follows that the date of entry begins the reporting window. That interpretation mirrors the opinions put forward by the Federal Trade Commission and the Consumer Financial Protection Bureau."
[SHRM members-only toolkit Conducting Background Investigations and Reference Checks]
The plaintiff sued The Screening Pros, which provides tenant screening reports to property owners, for issuing a background check report in 2010 that contained his criminal history—including a misdemeanor charge in 2000 which was dismissed in 2004—in violation of the FCRA and the California Investigative Consumer Reporting Agencies Act.
A district court dismissed the claim that the screening company violated the FCRA's seven-year rule, finding that the reporting period for criminal charges began on the 2004 date of dismissal, not the date of entry.
The Ninth Circuit disagreed, holding that the reporting period for criminal cases begin on the date charges were filed. The court "went further and held that the dismissal of a charge does not constitute an adverse item and may not be reported after the reporting window for the charge has ended," Devata said.
The court said that a dismissal is only adverse in that it discloses the previous charge. "Reporting the dismissal alone would reveal the existence of the charge, which after seven years, constitutes outdated criminal history information," wrote Judge Milan D. Smith, Jr., in the court's published opinion. "A related later event should not trigger or reopen the window, as the adverse event already occurred. To hold otherwise, thereby allowing this information to be reported through disclosure of a dismissal, would circumvent Congress's intent to confine adverse criminal information to a seven-year window."
In a lengthy dissent to the majority's interpretation, Judge Andrew J. Kleinfeld stated that a dismissal is an adverse item in itself because it reveals prior contact with the criminal justice system. He also noted that dismissals do not necessarily equal innocence but can also signify that someone has completed probation or struck a plea deal.