The Story Behind the News – Lawsuits Over Inaccurate Criminal Reporting

According to an ABC News story on October 13, 2008, there have been dozens of lawsuits in the past two years alleging that background checks have cost people work because they were incorrectly identified as criminals when in fact they were not. The story focused on the use of massive criminal databases, where private companies have added millions of records that are not always accurate.

Inaccuracies come in two varieties:

1. The criteria used in the database is “name match only” and reports criminal records that actually belong to someone else. This is because such database searches do not always contain identifying information, such as date of birth.
2. The database contains criminal records that are out of date and should not be considered by employers, because something happened after the data was obtained that makes the record unreportable, such as a deferred adjudication, expungement , a judge’s order to seal the records, or some form of judicial “set aside” under state law.

Here’s why these mistakes happen: Under the federal law that regulates pre-employment screening, the Fair Credit Reporting Act (FCRA), a screening company has two options when it comes to its use of these private databases. Pursuant to Section 613 of the FCRA, a recruitment firm may recheck criminal history database records at the courthouse to ensure they are up to date, OR send a contemporaneous notice to the applicant informing them that a review is underway. criminal record. informed about them.

The problem arises in situations where a recruitment firm chooses to use the “notice” option and does not go to court to ensure that the registration applies to the applicant and it is appropriate to report it. While that is a legal practice under the FCRA, it is also a reason why 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, as that is the only state that specifically requires an appraisal company to ensure public records are up to date. California law does not allow a recruitment firm to simply report what is in a database and send a notice to the applicant.

It’s also critical to note that such databases can also contain “false negatives,” meaning the person with a criminal record is falsely identified as clear. This can happen because these private databases are a quilted patchwork of data from various sources, with wide variations in accuracy, completeness, and timeliness. Additionally, several jurisdictions do not report any data 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 no identifiers are provided. While such databases can be valuable because they contain millions of records, they are best used as an indicator or clue generator for finding 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 in court.

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

The CRA standards in question are as follows:
A CRA that chooses to display the “Responsible Criminal Databases” seal self-certifies that it subscribes to the following standards when using criminal records in databases in the context of employment-related investigation, excluding investigation of volunteers, tenants, and others non-labor relations:

1. Criminal records databases compiled by non-governmental entities will only be used as indicators of possible records. Prior to making any report on a prospective or current employee to an employer on criminal history 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 prospective or current employer clients are informed about the limited nature of criminal history databases and the importance of investigating the criminal history of each applicant in the jurisdictions in which the Applicant has currently or previously lived or worked.