The accuracy of criminal records used in employment screening has become a major issue for both employers and employment background screening providers (legally known as consumer reporting agencies (CRAs)) in Fair Credit Reporting Act (FCRA) related litigation.
Considering the potential liability of hiring a candidate with a criminal record, combined with the speed and omnipresence of the media, one bad hire could be a PR and financial nightmare for a company of any size. On the other hand, consider not hiring a candidate — or firing an employee — because of a faulty or inaccurate background check.
A recent complaint (Buckley v. Uber Technologies, Inc. et al) filed in August of 2021 asserts that a consumer reporting agency (CRA) violated the FCRA by reporting to Uber Technologies Inc. and Lyft Inc. that the plaintiff was listed as deceased on Social Security Administration’s (SSA) Death Master File. The suit was filed on behalf of a former driver for Uber and Lyft who contends that his work for the ride-hailing companies was terminated due to an inaccurate consumer report.
According to the complaint, the plaintiff seeks damages for harms stemming from the prolonged and inaccurate background check that Uber and Lyft were allegedly obligated to provide him with a copy of, but did not. Under the FCRA, all screening providers must “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Also under the FCRA, candidates must give prior written consent before employers conduct a background check — and have the right to dispute reports’ contents.
While many of these class action lawsuits at the federal level are aimed at CRAs, the company that engages a CRA isn’t protected from liability. There are many reasons an inaccurate background check could expose your company to costly legal action: A background check could turn up data on a person with a similar name, report old or expunged charges, or errors in cases of identity theft if the background screening provider doesn’t verify the negative information.
How to Work With Your Screening Partner to Reduce Liability
When it comes to your company’s legal liability, it’s important to partner with a background screening vendor that puts data accuracy ahead of just about anything else. Your selection process should begin by verifying that a screening provider is accredited by the Professional Background Screening Association (PBSA). Founded as a non-profit trade association in 2003, PBSA was established to represent the interest of companies offering employment and tenant background screening services. Accreditation means that a provider has been independently audited to ensure it adheres to best practices in its operating procedures and policies, which include how it handles current legislation around accuracy in background checks.
FCRA compliance (and how your provider will notify your company of any changes in the FCRA).
- How customer service is provided. Some providers outsource or offshore their support while others provide dedicated, U.S. based customer support.
- The data acquisition process. Some companies are looking for a vendor on the lower cost end of the spectrum, but a vendor that is significantly cheaper may also take shortcuts with how it sources data. While screening firms access similar information, the methods they use to source records can differ widely.
- How a vendor ensures accurate and actionable criminal reports and protects your company from any liability.
- Data privacy and if the screening is performed in the U.S. or offshore. If offshored, the provider should explain how data privacy will be protected in accordance with Safe Harbor, GDPR, and requirements for screening applicants from EU countries.
Acting on an inaccurate background check could keep your legal team busy for years dealing with the repercussions of a class action or individual lawsuit and the cost to your company could be in the millions. In 2019, Good Jobs First, a nonprofit resource center promoting accountability in economic development, found that over the past decade employers paid out $174 million to resolve class-action lawsuits alleging that they violated federal rules governing the use of background-check reports on job applicants. CRAs have paid out another $152 million when they have been sued directly.
Crimcheck is proud to be among only ten percent (10%) of PBSA members to achieve accreditation. As an accredited member, Crimcheck commits to providing the highest level of industry standards, our operational team members obtain PBSA certification, and we offer clients solutions that help them manage their compliance while background screening.