FCRA Permits Reporting Unmatched Criminal Records: Impact on Consumers and Employers

An ongoing reporting issue that many employee background check companies face came before the U.S. Court of Appeals for the Eleventh Circuit on December 4. The subject at issue? Whether it is accurate or not for a consumer reporting agency (CRA) to report criminal records without matching it to the consumer being screened. The court decided that such instances are indeed accurate. 

Fundamental Issues with Criminal Background Searches

This highly technical ruling addresses a fundamental issue that many CRAs face when trying to comply with the Fair Credit Reporting Act (FCRA) in record systems that make verification difficult. Many of the criminal record databases in the United States only use general details to search for records. Instead of using more specific information like a social security number or date of birth, usually, the only option available when searching is a first and last name or birth year. 

This ongoing challenge has left many background check providers leaving it on their customers to verify if screening data applies to the searched individual. Countless lawsuits have sought to challenge this practice throughout the country, but the Eleventh Circuit ruling has changed the understanding of how unmatched results comply with the FCRA. Still, there is a caveat to this latest ruling. Unmatched reports are FCRA compliant, but only if accompanied with an accuracy warning and clear instructions on how to further verify received records. This last step is what allows unmatched reports to comply with the FCRA standard for “maximum possible accuracy.”

Background for the Recent FCRA Decision on Unmatched Reporting

The latest suit that brought about the ruling centered around a father undergoing a background check to coach as a volunteer on his son’s Little League baseball team. The sports organization submitted his information to a CRA, which then conducted a search looking for any matching criminal history records. The background check company only had access to databases that used offender names and years of birth for verification, which meant the results would be far-reaching and not necessarily accurate. The Little League organization was aware of this issue, and the screening company cautioned them that additional verification for accuracy was necessary after a potential sex offender registry record came back matching the volunteer coach’s information.

In addition to the notation about the data not being guaranteed for accuracy, there were specific instructions on how to compare the information and photos available on Pennsylvania’s sex offender registry to determine if the record returned did belong to the father. The father received a letter from the CRA making him aware of this record being submitted to the Little League organization. They also informed him of their cautioning the sports company to investigate further before making any decisions.

Unfortunately, the record in question related to the man’s own father, who had the same name as he did. Despite explaining this fact to the CRA and Little League organization, he opted to withdraw his application to coach his son’s team due to the humiliation he endured. He also eventually changed his last name to prevent confusion in the future.

Why the Court Sided with the Background Check Company

A couple of months after the initial ruling, the father filed suit against the background check company, claiming they failed to reasonably follow outlined FCRA procedures. He believed this failure meant they did not assure the “maximum possible accuracy” according to 15 U.S.C. § 1681e(b) of the act. 

The 11th Circuit ultimately sided with the background check company because he failed to establish that the report was inaccurate and that this failure caused him harm. This was a previously set precedent by the court in Cahlin v. General Motors Acceptance Corp. Determining whether the report given to the Little League organization violated these standards depended on two factors. First, whether the data was factually accurate, and secondly, that this information would not create a misunderstanding.

Because the background check service provided clear warnings regarding the accuracy of the shared sex offender registry record. Additional direction to verify the data further was part of the report, which caused the court to find that the information did not lead to a misunderstanding. The sports company knew that the record was based on a name and birth year alone, which meant they understood further verification on their part would be necessary. 

In addition to this critical aspect, the court also recognized that the report used language that clearly stated the expectations regarding data veracity. There were no guarantees it would be accurate, and this fact was plainly stated in the results by the screening provider. Ultimately, the father’s appeal on the grounds the report was not maximally accurate could not stand. His claims of harm did not either, which led to support of the previous trial court decision.

What This Judgment Means to Employers and Consumers

Organizations that rely on background checks as part of their hiring process, as well as consumers and employees who authorize these queries, should take a significant lesson from this latest ruling. Understanding the type of screening product used, what results to expect, and how to interpret the data are critical when relying on a background check service.

Making adverse hiring decisions based on unmatched records is risky business, especially if you don’t know that the data you receive is inaccurate or unverified. This makes it more critical than ever to choose a screening provider that offers more than an instant check name check. Comprehensive background check services should offer a host of digital tools along with a human touch to ensure the accuracy and reliability of any information shared with employers and consumers.  

The importance of these two factors cannot be emphasized enough. Making a hiring decision based on incomplete or faulty information opens a business up to countless risks, including:

• Hiring discrimination suits
• Bad hiring decisions
• Worker safety
• Consumer safety
• Non-compliance penalties

The Pre-employ Background Check Software Suite Solution

As a premium background check provider, Pre-employ not only offers the most reliable and high-quality data to our clients, but we add that needed human touch to ensure accuracy. Paired with our award-winning US-based customer service, you can trust our FCRA-certified experts to provide crucial guidance every step of the way. We do this so that your company is always compliant with local, state, and federal laws. This unwavering focus we take on behalf of our clients is the reason Pre-employ is a top background screening service provider in the United States today. 

Pre-employ background check software is an ideal solution for any organization, no matter where you are located in the world. Our pre-employment screening services ensure you get access to official databases and records. We provide searches that yield results that are verified and matched. While there are numerous alternatives for obtaining access to such data, only Pre-employ offers an unwavering focus on superior customer support and excellent applicant experiences backed by a 100% US-based service and support team.