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Mistaken identity in background checks can cost applicants job offers

August 23, 2014 at 12:25 PM EDT
Today, nearly 90 percent of employers run a check on at least some of their applicants. As more employers throughout the country use background checks to review job applicants, NewsHour Weekend's Megan Thompson takes a look at the job-screening process, which has recently come under fire for inaccurate reports that can cost people jobs. 

MEGAN THOMPSON: In 2012, Kevin a. Jones applied for a part-time job as a doorman in New York City. He was soon called in for an interview at the large property management company, Halstead.

KEVIN JONES: The interview actually went very well. I hand him my resume. We talked about my background. And he basically ended the interview by saying, “We would love to have you work for us.”

MEGAN THOMPSON: Great news for the divorced 58-year-old father and professional driver who needed the extra money to help pay child support. Jones filled out the paperwork, submitted a drug test and waited to hear when he could start. Instead, he got a different kind of call.

KEVIN JONES: And Human Resources said, “There’s a problem with your background check.” And I said, “What problem?” “Yeah, there’s some criminal stuff going on. You need to talk to

MEGAN THOMPSON: It turned out the background check – conducted by a company now called Sterling BackCheck – showed convictions for drunk driving, attempted petit larceny and forgery, and two stints in jail. A few days later, Jones got a letter in the mail saying unless he could clear the matter up, his job offer was being revoked.

MEGAN THOMPSON: Do you have any kind of criminal history?

KEVIN JONES: None. Never. Ever. I was upset. And of course, embarrassed. You know. I’m thinking this is not right. You guys have made a major mistake and this needs to be fixed.

MEGAN THOMPSON: Jones says after months of phone calls with no resolution, he had to get a lawyer to sort it out. But by then, the damage had been done. So earlier this year, he became lead plaintiff in a class action lawsuit against Sterling, accusing it of “systematically failing to use reasonable procedures” to ensure accuracy, as required by the federal Fair Credit Reporting Act. Jones also sued his would-be employers, Halstead and Brown Harris Stevens, alleging they denied him adequate opportunity to dispute the report, his right under federal law.

JIM FRANCIS: These companies are getting thousands of disputes a year from consumers who are claiming that there’s an inaccuracy on their background check.

MEGAN THOMPSON: Jim Francis is one of Jones’s attorneys, whose firm specializes in cases of botched background checks.

JIM FRANCIS: It’s a very, very troubling problem. And one that I don’t see abating at any time in the near future.

MEGAN THOMPSON: Since 9/11, the background screening industry has grown dramatically. Today, almost 90% of employers screen their applicants meaning millions of checks are done every year. The idea is to avoid problems and keep the workplace safe. But critics say the sources some screeners get their information from–bulk databases or other companies called data brokers–can be flawed. And the volume and speed at which it’s all compiled can mean mistakes are made, jobs lost and reputations ruined.

JIM FRANCIS: What is the cause of it is a business model from the background screening industry that promotes speed and value of sales over accuracy and care.

MEGAN THOMPSON: In recent years, hundreds of lawsuits have been filed against background check companies, some are resulting in multi-million dollar class action settlements. In the last two years, the Federal Trade Commission has also stepped up its enforcement–issuing hefty fines against major screeners and data brokers. What’s more, the burden can fall on the job applicant to get a mistake fixed and most don’t know where to begin.

KEVIN JONES: I was disagreeing vehemently, but they- they weren’t listening. And- and no one was helping. It wasn’t like there was a suggestion, “Well, why don’t you try this?” You know.

MEGAN THOMPSON: In the case of his client, Kevin A. Jones, Jim Francis contacted the local courthouses and pulled the actual records. He found all those convictions belonged to a man in upstate New York with the same first and last name, and birthday. But all the records showed this man had a different middle initial–M. He also had completely different home addresses than the other Kevin Jones.

JIM FRANCIS: There was plenty of information available in the actual public record that would be been able to prove that he was not the person who was the subject of these criminal records. But, they didn’t get these records.

MEGAN THOMPSON: There is no central government database that contains criminal history information from the thousands of local jurisdictions across the U.S. and Francis says the massive databases background screeners compile themselves or get from outside data brokers can be incomplete and out of date.

MANEESHA MITHAL: You have to see that if there’s some information that doesn’t match, if there are multiple fields that don’t match, you have to ask more questions.

MEGAN THOMPSON: Maneesha Mithal is the associate director of The Division of Privacy and Identity Protection at the Federal Trade Commission which enforces the Fair Credit Reporting Act. It requires that background screeners use “reasonable procedures to assure maximum possible accuracy.” It also guarantees a free copy of the background report and requires the screener to reinvestigate if a job applicant disputes something in their report.

MANEESHA MITHAL: If you have a sex offender applying for a job at a daycare, you don’t want to require necessarily that every piece of information matches. Because you want to be able to catch people who might have a transposed middle initial, but actually are the sex offenders.
At the same time, you don’t want people who are not sex offenders to be denied that job based on erroneous information. So, what we’ve told companies is that you have to have reasonable procedures. You have to do some due diligence. You have to do some checking.

MEGAN THOMPSON: Is there any requirement that these background screening companies have to register with anyone? Or is there any kind of national sort of list of these companies?

MANEESHA MITHAL: No, there isn’t.

MEGAN THOMPSON: So, we don’t know how many com- of these companies are even out there?

MANEESHA MITHAL: No, we don’t. And I think that’s one of the challenges.

MEGAN THOMPSON: We asked for a statement from Sterling Backcheck, the company that issued Kevin Jones’s background report. It declined comment. But in a court filing, the company denied the allegations and any liability to jones or other plaintiffs. Jones’s would-be employers, Halstead and Brown Harris Stevens, said in a statement they engage an independent, third party provider to complete background checks and “if there was a case of mistaken identity by our screening company, we are nonetheless sympathetic to Mr. Jones’s situation and have so informed his council We support the fair credit reporting act and believe that we are fully compliant with its requirements.”

MELISSA SORENSON: Certainly the- one or two that come through that ha- may have a potential issue are the ones that become more noteworthy and noticeable. What you don’t necessarily hear about are the millions of successful screens that are happening each and every day.

MEGAN THOMPSON: Melissa Sorenson is the executive director of The National Association of Professional Background Screeners, an industry group with about 700 members, including many of the biggest screening companies. It launched its own accreditation program four years ago and says about 10 percent of its members have gone through it. But Sorenson says there is no information publicly available about the accuracy rate in the industry. But Sorenson says, anecdotally, the error rate is very low.

MELISSA SORENSON: For all of our members, accuracy is key to the product that they’re providing. It’s key not only because it’s critical and mandatory under federal law/. But their customers demand an end product that’s accurate and that they can use in making a hiring decision.

MEGAN THOMPSON: Sorenson says if a screener finds something questionable, The Fair Credit Reporting Act requires it either check the original source, or give notice to the employer and job applicant.

MEGAN THOMPSON: So, you’re saying that the screener can then just send a letter to the employer and the consumer saying, “Hey, we found this. / I mean, hasn’t the damage then already been done?

MELISSA SORENSON: With that initial notice that comes out, you then have the opportunity as a consumer to dispute that information.

MEGAN THOMPSON: Sorenson says screeners have a duty to reinvestigate if a dispute is made, but there are no requirements about what a reinvestigation entails. And, if a job applicant does get a mistake fixed, that information isn’t necessarily shared among the other companies.

MELISSA SORENSON: Background screening companies operate independently.
It’s possible that if a background screen show- something came back on a background screen for a particular individual and then another screening company performed a screen, the same information could show up.

MEGAN THOMPSON: And that’s exactly what Kevin Jones says he’s worried about.

KEVIN JONES: If it happened once, it could happen again. If- It’s unfortunate to feel that way, but it happened. So, I- I have to feel that way.

MEGAN THOMPSON: Jones is now working full-time and says he hopes his lawsuits will help prevent this from happening to someone else. His cases are currently pending in New York District Court.