I live in Dallas TX and have a 10 year old felony in Colorado. I applied for a job in TX and was hired, but had to wait for the background check which was performed by Sterling Info Systems, a consumer reporting agency. My question is, since they're a consumer reporting agency and I live in TX, weren't they only suppose to go back 7 years on my background check? They went back 7 plus, which is how it was worded in the report I received.
Great question. Though Texas's statue prohibits the reporting of criminal convictions older than 7 years, the statute is superseded by the federal statute, the Fair Credit Reporting Act. The reason it is because the Texas statute was enacted after the FCRA preemption date. States that had their statutes enacted before the preemption date are not superseded. This does not mean that the report can be inaccurate (which includes misleading). Also, the employer is required to provide you with a copy of the report plus a meaningful opportunity to address, review or dispute the report BEFORE it declines your employment. Did the employer provide the report to you?
Criminal background checks are generally carried out through databases and services which provide specific types of historic data access (like Lexis-Nexis). If the criminal background check is performed using governmentally maintained databases, the employer has no obligation to notify the applicant that such information was collected or considered as part of the employment decision. If the employer uses a private services (as described above), the Federal Credit Reporting Act (“FRCA”) requires the employer to give written notice that a background check will be performed, and to obtain written authorization for the background check from the applicant. A background check performed under the FRCA may exceed seven years. An employer may reject an application if the applicant refuses to provide such authorization.
If an application is declined as a result of a criminal background check performed using a private service, the employer must notify the applicant and provide a copy of any report on which the employer relied.
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