Most job-seekers have never been arrested in their lives. Nevertheless, we at Sherman & Ticchio have seen a recent uptick in the number of times that potential employees are being denied job offers or having conditional job offers withdrawn based on false information on the background check reports that companies are increasingly requiring as a prerequisite to hiring job applicants. The overwhelming majority of the false information reported about potential employees about which we have heard lately consists of totally inaccurate background check reports that incorrectly state a job applicant was arrested and/or has a record of criminal charges/criminal convictions.
All of the companies that issue background check reports to potential employers (click here for a list of background check reporting companies) are (a) by statutory definition, Consumer Reporting Agencies (CRAs), (b) subject to the requirements of the federal Fair Credit Reporting Act (FCRA) just like CRAs that publish credit reports and other consumer reports (such as Equifax, Experian, and Trans Union), and (c) guilty of inaccurately reporting on background check reports that job applicants have been arrested and/or convicted of crimes.
One company that stands out to us as a repeat offender is a background check company called Checkr. Checkr apparently conducts background checks for Uber. Too often, especially for folks with common names, those background check reports from Checkr include records of arrests and/or convictions that simply never happened. Or at least arrests and convictions that never happened with respect to the person applying for a job with Uber. Again, all background check report companies issue inaccurate reports. Perhaps the rise in false background check reports concerning Chekr is the sheer volume of individuals applying for jobs with Uber. Even if that is the reason for the high number of inaccurate Checkr reports, it is no excuse. It seems that most, if not all, background check reporting companies simply accept the cost of legal liability as a cost of doing business.
All background check report companies have the obligation under the FCRA to maintain and follow procedures to assure the maximum possible accuracy of the information they report about job applicants.
So, if you are a victim of an inaccurate background check report, you very likely already have an actionable case under the Fair Credit Reporting Act. Moreover, you should dispute all inaccurate information as soon as possible after you learn you lost out on a job opportunity because there are errors on your background check reports. You can dispute background check report inaccuracies with or without the guidance of an attorney. At Sherman & Ticchio, we never charge clients/potential clients for case evaluations or for providing guidance through the dispute process. Indeed, even if we take a case all the way through trial, Sherman & Ticchio does not ever charge its clients a penny out of pocket. All of our fees come directly from the proceeds of the case itself. Because the FCRA is a fee-shifting statute, Defendants -- not our clients -- are the source(s) of the fees that we collect.
Once you do dispute inaccurate information on your background check report, the background check report company has 30 days to complete an investigation. The FCRA requires that the investigation be "reasonable" and that the background check company/CRA must delete any disputed information that it cannot, via a reasonable investigation, verify as accurate. If information cannot be verified after a reasonable investigation but the background check company continues to report the false information, you will have additional claims available to you under the FCRA. Moreover, if a reasonable investigation would have revealed that disputed information, in FCRA terms "cannot be verified," but the background check company continues to report disputed information anyway, you may have a strong case for punitive damages.
If, because of false information on a background check report, you were denied a job or had a job offer rescinded, we encourage you to contact our firm. You can contact Sherman & Ticchio by clicking here.