The Story Behind the News: ABC News Reports Dozens of Lawsuits over Inaccurate Criminal Reports Stemming from Database Searches

According to a story from ABC News on October 13, 2008, there have been dozens of lawsuits in the past two years alleging that background checks have cost people jobs because they were inaccurately identified as criminals when in fact they were not.  The story focused on the use of massive criminal databases, where private firms have aggregated millions of records that are not always accurate.  See:  http://abcnews.go.com/TheLaw/story?id=6017227&page=1

The inaccuracies come in two varieties:

  1. The criterion used in the database is “name match only” and reports a criminal record that in fact belongs to someone else.  That is because such database searches may not always contain identification data, such as date of birth.
  2. The database contains criminal records that are outdated and should not be considered by employers, because something occurred after the data was obtained which makes the record non-reportable, such as a deferred adjudication, expungement, a judge’s order that records be sealed or some sort of judicial “set aside” under state law.

Here is why these errors occur; Under the federal law that regulates pre-employment screening, the Fair Credit Reporting Act (FCRA), a screening firm has two options when it comes to the use of these private databases.  Under Section 613 of the FCRA, a screening firm can either re-verify the criminal database records at the courthouse to ensure it is current and up-to-date OR send a contemporaneous notice to the applicant advising them that a criminal record is being reported about them.

The problem arises in situations where a screening firm chooses to utilize the “notice” option and does not go to the courthouse to ensure the record applies to the applicant and is proper to report.  Although that is a legal practice under the FCRA, it is also a reason that some background reports contain information that does not relate to the applicant or should not have been reported, sometimes referred to as a “false positive.”

It should be noted that this is NOT an issue in California, since that is the one state that specifically requires a screening firm to ensure that public records are current and up-to-date.  California law does not permit a screening firm to simply report what is in a database and send a notice to the applicant.

It is also critical to note that such databases can also contain “false negatives,” which means that person with a criminal record is falsely identified as being clear.  This can happen because these private databases are a crazy quilt patchwork of data from a number of sources, with wide variations in accuracy, completeness and timeliness.  Also, a number of jurisdictions do not report any data at all to these databases.  For example, such a database is of little use in some large states like California or New York where little data is reported or identifiers are not provided.  Although such databases can be valuable because they contains millions of records, they are best used as a pointer or lead generator for places to look for records, and should not replace court searches of counties where a person has lived or worked unless the database contains the same information that is available at the courthouse.

In response to these concerns, a number of screening firms, including ESR, have adopted standards that would prevent inaccurate criminal records from databases.  This is also part of the Concerned CRA standards at: http://www.concernedcras.com/

The Concerned CRA standards are as follows;

A CRA that chooses to display the “Responsible Criminal Databases” seal is self-certifying that they subscribe to the following standards when using criminal records in databases in the context of employment-related screening, exclusive of the screening of volunteers, tenants, and other non-employment relationships:

  1. Criminal records databases compiled by non-government entities will only be used as indicators of possible records. Prior to making any report about a potential or current employee to an employer about a criminal record from a database, the CRA will verify the information directly with the reporting jurisdiction. This ensures that employers make decisions based on accurate and up-to-date information.
  2. When using these databases it is important that current or prospective employer clients are provided information about the limited nature of criminal records databases and the importance of researching each applicant’s criminal history in the jurisdictions in which the applicant currently or previously has lived or worked.

For more information, contact Jared Callahan at ESR at jcallahan@esrcheck.com or by phone at 415-898-0044.