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Criminal background check prompts federal lawsuit

Errors in criminal background checks may be common, which could lead to a denied job opportunity. A Connecticut lawsuit details one such case.

A Connecticut woman's lawsuit alleges she lost a chance at a job because of an error in a criminal background check. The background check reported that the plaintiff, Jasmine Jessica Ann Jackson, had an outstanding felony warrant in Texas, but the warrant was for someone else, according to the lawsuit.

The background check "had two personal identifiers that did not match our client -- the address and middle name," said Alexis Lehmann, an attorney at Francis Mailman Soumilas, P.C. in Philadelphia, who is representing Jackson.

The lawsuit filed in the U.S. District Court for Connecticut is against Inc., a preemployment screening and background check services provider based in Brunswick, Ohio.

Crimcheck filed a response in court on Monday denying the allegations. The case is in federal court because it alleges violations of the Fair Credit Reporting Act, federal legislation requiring accuracy, fairness and privacy of data used by consumer reporting agencies.

Lawsuits filed over errors in criminal background checks are common, and mistakes are costly to job candiates, said Ariel Nelson, a staff attorney at the Boston-based National Consumer Law Center.

"It harms people," Nelson said, of errors in criminal background checks. "This is about people's livelihood and ability to have financial security."

No standardized reporting

There's no standardized reporting, formats or definitions in criminal background data reports, leading to errors, Nelson said. The consumer law center identified the problems in a 2012 report, "Broken Records Redux," which was updated by Nelson in 2019. The updated report noted that not much in the industry has changed and automation may be making the problem worse.

There has been no comprehensive industrywide study to answer the question of how prevalent errors are.
Ariel NelsonSaff attorney, National Consumer Law Center

Firms are now generating criminal background check reports through largely automated processes of aggregated data, the report noted. "Reports may undergo only minimal, if any, manual review or quality control before an employer or landlord receives them," it stated.

"There has been no comprehensive, industrywide study to answer the question of how prevalent errors are," Nelson said.

A 2013 study by the U.S. Federal Trade Commission (FTC) concerning consumer credit reporting offers a clue about error prevalence. It reported "that 5% of consumers had errors on one of their three major credit reports," which could raise the interest rate on loans.

The FTC didn't look at criminal background checks, specifically, but because of the large number of criminal background checks conducted, in the tens of millions per year, even a small error rate could impact thousands of people, Nelson said.

"There is perhaps no greater error that a consumer reporting agency can make," stated Jackson's lawsuit, which was first reported by the Journal Inquirer, a Connecticut newspaper.

Basis for denial

Jackson had applied for work at a staffing agency but didn't get the job. She was told "the basis for the denial was the inaccurate criminal information" on the background report, the lawsuit alleges.

Job seekers have to consent to a background check, and prospective employers are required under federal law to notify the candidate of a negative finding, which is called an adverse action notice.

Lehmann said her firm files multiple lawsuits a week against various background check companies, and negative information on a criminal background check can be difficult to fix -- and difficult for an employer to get past.

"Once you see something, you can't unsee it," she said.

Disputing a criminal background check error isn't easy. Often, the job candidate can't get through to the background check company or leave a message and does not hear back, Lehmann said.

Plus, background check companies don't necessarily correct disputed records, "which is just egregious," Lehmann said.

Patrick Thibodeau covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.

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