What can Happen when an Employment Background Check Gets the Facts Wrong
Today, close to 90% of employers check to see if a new employee has a criminal background. Sometimes these reports contain inaccurate information.
How often this happens is not known. Usually, the only way we learn about a flawed background check is when an individual sues the background check company who performed the check and/or the employer who withdrew the job offer.
The Fair Credit Reporting Act (FCRA) regulates the activities of consumer reporting agencies (CRAs) – the people who perform background checks. The FCRA regulates how CRA vendors perform a background check.
The FCRA also tells employers what they need to do if they want to check someone’s background and what steps they must take if that information ends up playing a role in their decision to withdraw a job offer.
A Rush to Judgment
Landry v. Thomson Reuters Corp. (D. N.H. Sept. 24, 2018), is a case in point. The complainant was hired to work at a call center. The employer hired Thomson Reuters, a CRA vendor, to perform the background check.
The initial report correctly noted that the complainant did not have a criminal background. The complainant was hired. Several months later Thomson Reuters provided the employer with a supplemental report.
This report said that the complainant had been sentenced to jail in Harris County, Texas. Based on this information the complainant was terminated.
The complainant contacted the jail and learned there was an inmate who had the same name as he but shared no other personal information (e.g., birth date). The employer refused to rehire the plaintiff, despite this additional information.
It is not clear what led Thomson Reuters to give the employer the supplemental background report. The more pressing question, in view of its initial report, why didn’t Thomson Reuters conduct a more thorough investigation before handing over the information.
Finding the Factual Error in the Haystack
This case reminds me of how even official records are not error free.
I once helped a client get his record sealed. In the process my client discovered there was a person living in Indiana who shared the same name and birth date as he. He also learned there was an outstanding warrant for the individual. My client learned this the hard way.
I contacted the Indiana authorities who issued the warrant and obtained a copy of the man’s rap sheet and mug shot.
On the day my client’s petition to seal was scheduled to be heard in court, I gave copies of the man’s rap sheet and mug shot to the State’s Attorney and the Cook County Sheriff. I assumed this information would shield my client from any additional harassment by law enforcement. I was wrong.
I later learned that sheriff’s personnel took my client into custody immediately following court and refused to release him until evening. As luck would have it, the Indiana man had a tattoo of a bear on his chest. Someone finally looked at my client’s chest.
After getting detained one more time I finally learned why the warrant kept rearing its ugly head. A second call to Indiana authorities uncovered an alarming error: my client’s FBI I.D. number had been mistakenly written on the warrant.
Both these cases serve as a stark reminder that background checks are fallible – whether due to human error or misreading the source material. That’s why an employer is supposed to give the job applicant a copy of the background report prior to withdrawing a job offer.
Anytime you undergo a background check for a job (and have a criminal record of any kind), ask for a copy of the report. By doing this, you get the added benefit of letting the employer know you know about the FCRA’s protections.
Finally, unless an employer tells you a background check will only go back 7 years, always assume there’s no time restriction. A conditional job offer is just what it means.