Employers and non-profit organizations rely on background checks to foster a safer work environment and protect the vulnerable. Not every organization uses fingerprint-based or Social Security background checks, and name-based background checks are faster and just as effective for informational purposes.
Name-based checks do have one drawback: a candidate may share a name with someone else, potentially someone who has a criminal record. Do name-based background checks return inaccurate information? Does using them put employers at risk of violating the FCRA during the hiring process?
A recent ruling in the U.S. Court of Appeals indicates current legal thinking on the matter. The Eleventh Circuit ruled that background checking agencies do not report "inaccurate" information when they supply criminal record data that does not link to one specific individual. If the background check provider notifies the purchaser that they must conduct additional verification, the provider has not supplied inaccurate data.
Behind the ruling is a case of mistaken identity. A man applying to coach a youth sports league voluntarily submitted to a background check. The name that the man gave to the league for background checking was the same as his father's—a registered sex offender. The reporting agency alerted both the man and the sports league with the disclaimer that further verification was required.
The man withdrew from consideration for the role, then filed suit, alleging a violation of the FCRA. Based on the court's ruling, the agency's report could only be considered "inaccurate" if they definitively but erroneously attributed the record to the subject of the background check. The court established a standard: reporting unmatched records is not inherently inaccurate if "reasonable users" would know that the data was not a confirmed match.
What does this ruling mean for businesses that rely on background checks such as the US OneSEARCH from backgroundchecks.com?
An extra verification step should always be a part of the process that you use to vet potential new hires. Because criminal records do not always contain identifying information, such as a birthday, it is critical not to make immediate decisions based on the results of a report.
Instead, match any records returned to the applicant you are considering. Providers of criminal records cannot make these verifications for you, so it is up to you as an employer to determine if records of a past crime or sex offense are legitimate and related.
Making decisions without confirming the integrity of the information could expose your business to legal liability and claims of unfair discrimination. While background checks are an essential tool for businesses, companies must remain aware of their limitations and legal restrictions.