A dismissal is not a conviction. When a criminal case is dismissed, the court has ended it without a finding of guilt. A background check that reports that case as a conviction, or reports it as still open, is reporting something that is not true — and under the Fair Credit Reporting Act, that is the screening company’s problem, not yours.
That distinction gets lost constantly, because the company selling the report to your employer is not the court. It is a private company buying court data in bulk, and the record it bought may be a snapshot taken before the case ended.
Three ways a dismissed charge goes wrong on a report
It is reported as a conviction. The most damaging version. A disposition field is blank, mismapped, or carried over from an earlier stage of the case, and a dismissed charge arrives on the employer’s desk looking like a guilty verdict.
It is reported as pending. Almost as damaging, and more common. The screening company pulled the record while the case was open and never went back for the disposition. To an employer reading the report, an open criminal case and a dismissed one look very different.
It is reported at all, years later. Under 15 U.S.C. § 1681c(a)(2), a consumer reporting agency may not report “[c]ivil 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.” A dismissed charge is a non-conviction record. It falls inside that bar.
There is a carve-out, and it matters. Section 1681c(a)(5) bars “[a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.” Federal law sets no time limit on reporting an actual conviction. The CFPB states it directly: “There is no federal time limit for how long criminal convictions can stay on your report, although some states may have different rules,” while “[a]rrests can remain on your report for seven years from the date of entry, unless a longer statute of limitations applies.” The FTC says the same thing: “Most civil lawsuits and judgments, including housing court cases, and arrest records can’t be included in a report after seven years. There is no time limit for criminal convictions.”
So the seven-year argument works for a dismissal. It does not work for a conviction. Being clear about which one you are dealing with is the first step.
What the law asks of the screening company
Two provisions do most of the work.
Reasonable procedures. Section 1681e(b) requires that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Note what that says and what it does not. It is a standard for the agency’s procedures, not a guarantee that every report is perfect. The question in a case is whether the procedures were reasonable — and a process that pulls a charging document and never checks the disposition invites the question.
Complete and up to date. Section 1681k(a) applies specifically when a company reports public records for employment purposes that are likely to hurt your chances of getting the job. It must do one of two things: notify you at the time it sends the report, or “maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.” The statute then says exactly what “up to date” means for records like these: “items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.”
A dismissal is the current public record status. A report that omits it has an answer to give.
What your employer was required to do
Before an employer takes adverse action against you based even in part on a background report, 15 U.S.C. § 1681b(b)(3)(A) requires it to give you “a copy of the report” and “a description in writing of the rights of the consumer under this subchapter.” That happens before the decision is final, not after — the point is to give you a chance to say “that case was dismissed, here is the court order.”
If you were turned down and never received a copy of the report, that is worth mentioning when you call. It is a separate problem from the inaccuracy itself.
What to do now
Get the report. Ask the employer which company ran it, then request your file from that company. You are entitled to it.
Get the court’s disposition. A certified copy of the docket or the dismissal order is the document that ends the argument. Clerks issue these routinely.
Dispute it in writing, to the screening company. Under § 1681i(a)(1)(A), once you dispute an item the agency must “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate,” free of charge, “before the end of the 30-day period.” That window can extend by up to 15 more days if you send additional information during it. Send the disposition with the dispute.
Keep everything. The dispute letter, the mailing receipt, the response, the job you did not get. Documents decide these cases.
Our page on how to dispute a background check walks through the mechanics, and background check errors covers the wider family of screening mistakes. If your record was expunged or sealed rather than dismissed, that is a different situation with a different argument, and we cover it separately in expunged record still on a background check.
What a claim is worth
The FCRA separates careless violations from deliberate ones.
For a negligent violation, § 1681o(a) allows your actual damages plus costs and reasonable attorney’s fees. There are no statutory damages under that section.
For a willful violation, § 1681n(a) allows “any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000,” plus “such amount of punitive damages as the court may allow,” plus costs and fees.
Actual damages in a screening case are usually the job — the offer withdrawn, the months of lost wages, and the harm of being described to an employer as something you are not.
There is a deadline. Under § 1681p, an action must be brought “not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation … or (2) 5 years after the date on which the violation … occurs.” Two years from when you found out is the practical limit in most cases. Do not sit on it.
Talk to us
If a dismissed charge cost you a job, we would like to see the report and the docket. Send both and we will tell you whether there is a claim. You pay nothing unless we win.
We handle claims under the Fair Credit Reporting Act against background screening companies nationwide. Can I sue a background check company? sets out how these cases work, and FCRA lawsuit explains what filing one involves.
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