Wrongful Uses of Arrest Records

June 11, 2020

by Attorney Ted Chakos

“Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.”[1]

The consequences of an arrest on your record can be dire. But so too are the consequences for those who wrongfully use it. The Fair Credit Reporting Act (FCRA) regulates what arrests can be considered. The Illinois Human Rights Act (IHRA) prohibits employers and landlords from using an arrest record at all.

The two acts put force behind the idea that “a well-meaning police officer can mistakenly arrest an innocent—but that innocent should not suffer the consequences of the mistake.[2] Murillo v. City of Chicago, 2016 IL App (1st) 143002, ¶ 29.

The FCRA requires disclosure and limits the age of the arrests

Background checks fall within the ambit of consumer reports and so are regulated by the FCRA. The Act says that “before taking any adverse action based in whole or in part, the person intending to take the adverse action shall provide to the consumer to whom the report relates: (i) a copy of the report; and (ii) a description of the rights of the consumer. . .”[3] If the employer doesn’t provide the report, that is a basis for a cla seeking attorney’s fees, $1,000 statutory damages, and other compensation.  

If the background report discloses arrests that did not lead to convictions that are older than seven years, then that would violate the Fair Credit Reporting Act.

The IHRA prevents use of Arrest Reports in Employment, Tenant decisions

The IHRA prevents the use of 1) an arrest that doesn’t lead to a conviction; 2) a juvenile record; and 3) a criminal charges that have been expunged or sealed.[4] If your employer or your landlord bases a decision off of an arrest, you can bring a claim and would be entitled to attorney’s fees and compensation.

 If you have had your employment or your ability to rent has been impacted by your arrest record, give us a call at (312) 818-6700 to talk to an experienced attorney today.

 

[2] Murillo v. City of Chicago, 2016 IL App (1st) 143002, ¶ 29.

[3] 15 U.S.C. 1681b(3)

[4] 775 ILCS 5/2-103.