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A new report on background check companies from the National Consumer Law Center (NCLC) called ‘Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses’ that claims mistakes on criminal background screening reports conducted for employers prevents many job seekers from finding work “is itself fatally flawed with errors and inaccuracy,” according to a safe hiring expert. To address the “erroneous information and unfounded conclusions” contained in the report, Attorney Lester S. Rosen has written an article, ‘Consumer Group Report on Inaccurate Criminal Background Check Reports Loses Impact Due to Lack of Objectivity and Errors,’ that is available at https://www.esrcheck.com/articles/NCLC-Report-on-Criminal-Background-Checks-Inaccurate.php.
Rosen, the founder and CEO of background check firm Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual,’ writes that while the NCLC report “suggests inaccurate criminal background checks are widespread,” the report only “cites a handful of anecdotal stories and some court cases where an inaccurate background check had grave consequences on a consumer’s ability to get a job out of the millions of background checks conducted yearly.”
Rosen goes on to state that although the NCLC report “makes recommendations to help prevent reoccurrence of situations where job applicants have been the victim of inaccurate reporting or sloppy processes, the report loses credibility due to an apparent lack of objectivity as well as a lack of knowledge of how professional background screening firms operate as most of what they propose are standard procedures for professional background screeners.”
Rosen also writes that statements in the report such as “professional background screening companies routinely make mistakes,” and “criminal background checks often contain incorrect information or sealed information,” are simply not supported by the few cases and anecdotes taken out of millions of reports prepared yearly. Consequently, Rosen states “this report on errors and inaccurate information is itself fatally flawed with errors and inaccuracy.”
In his article, Rosen cites the following examples of erroneous information and unfounded conclusions in the NCLC report that need to be addressed with more depth:
- The NCLC report insinuates that the problem of inaccurate reports is widespread by citing a few anecdotes. The background screening industry does millions of reports a year. Yet, in the entire 43 page report, literally only a handful of examples are given with no statistical support. The reports portray the issues as common and far reaching when, in fact, the only reasonable inference when the numbers are considered is that the opposite is true.
- The NCLC report fails to mention that consumer litigation is a growth industry, which provides a powerful tool for consumers who may be the victims of an inaccurate report. There appears to be dramatic increase in litigation claims against background screening firms as plaintiff’s attorneys have discovered a new and financially inviting target.
- The NCLC report fails to note that a United States Supreme Court case decided in June 2007, Safeco Ins. Co. v. Burr, substantially increased the risk of punitive damages under the FCRA by ruling that a reckless disregard of the FCRA could be sufficient to show “willful” non-compliance, a decision that has led to a dramatic increase in class action litigation.
- The NCLC report glaringly omits, and completely fails to recognize, the great societal benefit that background screening reports provide in reducing workplace violence, theft, and fraud, along with putting the best qualified candidate in each open position. The employer also has the legal obligation to exercise due diligence in hiring.
- The NCLC report fails to recognize or understand the service background screening firms perform in working with applicants to help correct inaccurate data. Background check reports are often the first time an applicant discovers there is information in the public sphere that needs correcting. Background check firms are in most cases the ones who assist applicants in correcting mistakes as a result of flawed information coming to their attention as a result of the legally required adverse action where they are provided with a copy of the report “before” the employer makes an adverse employment decision.
- The NCLC report apparently does not appreciate or understand the difference between “data brokers” who dispense aggregated/unconfirmed data and Consumer Reporting Agencies that assemble and evaluate material from a number of sources to provide a background check report where all information reported has been confirmed at the source during its preparation. The report erroneously focuses on some data brokers who assemble and sell unconfirmed bulk data. As a result, the report fails to understand the active role that CRAs play in working with consumers.
- The NCLC report, in lumping CRAs together with data brokers, fails to note that a group of approximately 170 leading Consumer Reporting Agencies – ‘Concerned CRAs’ — has publically rejected the use of databases without taking the steps necessary to a ensure accuracy and completeness as required under the FCRA. The Concerned CRAs position statements on bulk data and offshoring can be found at their website http://www.concernedcras.com/.
- The NCLC report encourages CRAs and employers to engage in behavior that is potentially discriminatory by seemingly urging that factors such as race, gender, and physical characteristics be utilized in some circumstances as identifiers, when such use raises grave concerns that an applicant may be a victim of discrimination since these are all potential protected categories. Physical attributes can also raise concerns under the Americans with Disabilities Act (ADA), and the Equal Employment Opportunity Commission (EEOC) and anti-antidiscrimination advocates would look closely at such a suggestion.
- The NCLC report fails to recognize and recommend what is likely the single most critical reform that is need to significantly increase accuracy: FCRA section 613 should be amended to prohibit the so-called “letter option” for criminal matters. The duty to accurately report a criminal matter under FCRA section 613 is typically satisfied by a CRA sending a researcher directly to the courthouse and pulling any public record to insure it is accurate and up to date, and to also look for identifiers. However, the FCRA does provide an alternative procedure where a CRA can notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported. It is this “letter option” that is a significant cause of inaccurate data.
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