Imagine this: You apply for a job. You meet all of the qualifications. You really need this job because you can’t afford not to get it. You take a background check and then you’re denied. You’re told by the employer it’s because of criminal charges on your record. Except, the information on the background check is false. You never did any of those things. Because you were denied from the job, you can’t pay your bills and you fall behind on payments.
Background check errors can have serious implications for individuals applying for jobs. Getting turned down because of a faulty background check can result in serious mental, physical, and financial anguish that could have been prevented if proper steps were taken by background check companies or the employer ordering the background check.
Background checks are a standard part of the hiring process in the U.S. According to a 2020 study from the HR Research Institute, 94% of employers stated that their organization conducted one or more types of employment background screening. The figure below shows the type of employees that organizations tend to screen. In 2020, 90% screened full-time employees, while that number dropped to 83% for part-time employees.
One common mistake that can occur on background checks is mistaken identity. Background check companies can confuse two people who have a similar or identical name. One could have a vast criminal record, and the other individual, the one actually applying for the job, could have zero. But the criminal offenses may appear on the background check of the latter.
The Palm Bach Postshared a story about two men – Richard Williams and Ricky Williams – who shared similar names and identical birthdays. Richard Williams was a college graduate and freelance graphic designer who never had any encounters with the law. Ricky Williams, on the other hand, had a long list of arrests for crimes like burglary, robbery, and selling cocaine.
When the company confused the two men in two separate employment screenings, Richard Williams was rejected for both jobs. Williams told The Gainesville Sun that he was “stressed out, experiencing headaches and heart pains as he struggled to find a job to take care of himself and pay his bills.” He sued and won a nearly $3.6 million jury verdict in federal court.
Another case of mistaken identity that led to severe consequences for the applicant involved Kathleen Casey, whose background check error landed her on the streets. According to the Associated Press, Casey, who was endangered of losing her appointment, applied for a job in the pharmacy of a Boston drugstore. When she did a background check for the employer, it showed a 14-count criminal indictment. The company that ran the background check, First Advantage, allegedly had the wrong woman. The indictment instead belonged to Kathleen A. Casey, a woman shared the same name but lived in another town and was 18 years younger.
Before and after a background check is conducted, your employer is required to follow certain procedures outlined under the Fair Credit Reporting Act (FCRA).
For example, the employer must get written authorization from the candidate to obtain the consumer report. Before sending a letter rejecting a job application, the employer has to send a copy of the report and a copy of A Summary of Your Rights Under the FCRA. This allows the candidate time to review the report and notify the employer if the information is incorrect.
If your employer fails to follow procedural steps, you may also have a claim. You could be entitled to civil penalties in the amount of $1,000 and actual damages (including emotional distress). In addition, punitive damages, plus attorneys’ fees and costs, may be recovered where there is “willful noncompliance” with the Act.
Several major companies have found themselves battling class action lawsuits for not complying with FRCA requirements. Some have settled, for example, Avis for $2.7 million, Target for $8.5 million, Uber for $7.5 million, and Home Depot for $3 million. Since 2011, more than 40 employers have paid out FCRA employment settlements of $1 million or more, according to Good Jobs First, a non-profit, non-partisan resource center promoting accountability in economic development.
What happens if you discover an inaccuracy on your background check? How do you properly dispute the background check for mistakes?
First, you need to demand a copy of the report from your employer who is legally obligated to give it to you. If an employer hired a consumer screening company to compile the report, the employer must give you the name and contact infoof the company.
Next, you need to check the report for errors. Some errors will take the form of clerical mistakes, such as transposing numbers or misreading handwriting, confusion caused by similar names, incorrect or incomplete data provided by the applicant, outdated credit information, or identity theft. If the employer or screening agency made the mistake, it must correct it immediately.
If the employer or screening agency did not make a mistake, you must obtain the correct information directly from the source. For example, to access a credit report, you will need to contact a credit report agency to correct erroneous information on your credit report. If there is a false criminal report, you may have to contact law enforcement to correct it.
To avoid workplace background check errors, you should regularly check and correct your credit report annually. If you see any suspicious activity on your credit report, you can contact one of the three credit bureaus (Experian, Equifax, or TransUnion) and add a fraud alert for free, which will remain on your report for a year.
You can also consider purchasing a background check on yourself from a reputable screening company before you apply for the job. This can give you time to correct false information before it takes away a job opportunity or taints your reputation.
Some states have additional consumer reporting laws and you may be entitled to more rights under your state’s laws. Make sure to contact your state or location consumer protection agency to learn more.
FAQS about Background Check Errors
What types of errors can occur in background checks?
Wrong or incomplete data in original documents
Types such as a number transposition
Copying, filing, and search mistakes
File corruption in computer system
Outdated negative information
How do I fix my background check if it contains errors?
Request a copy of the background check from the employer.
Check report for errors (wrong or incomplete data, duplicate information, mistaken identity, outdated negative information, etc.).
Provide the correct information to the employer and screening company, and demand that they change the report.
If there are no mistakes, you must supply the correct information to change the report.
How does the Fair Credit Reporting Act protect me?
The Fair Credit Reporting Act “promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.” Thus, you have specific rights as consumers under the FCRA.
The Act says that you must be told if information in your file has been used against you. You also have a right to know what is in your file. You may request and obtain information about you from the consumer reporting agency. You are entitled to free file disclosure under certain circumstances, listed here.
Do I have to give consent to my employer before they conduct a background check?
Yes. You must give you consent. A consumer reporting agency may not give out information about you to your employer or potential employer without written consent.
What will the process look like if I file with Lemberg Law?
You can call us at 475-277-2200 or use the case evaluation form on our website to receive a free, no-obligation consultation from our experienced legal team. If your case is accepted, our employers will work toward a settlement or take the responsible party to court. If we win, you receive the compensation you deserve for your injury. If we don’t prevail in the case, we cover the tab for you.
About the Author:
Sergei Lemberg is a lawyer whose practice focuses on consumer law, class actions and personal injury litigation. He has been repeatedly recognized as the “most active consumer attorney” in the country. In 2020, Mr. Lemberg represented Noah Duguid in the United States Supreme Court in the case entitled Duguid v. Facebook. He is the author of Defanging Debt Collectors, a book that teaches consumers how to battle debt collectors and win.