Advocates Complain of Background Check Errors

Dozens of lawsuits claim lost jobs because of bad background checks.

October 12, 2008, 5:47 PM

Oct. 13, 2008— -- Ryan Brandt thought his criminal history was behind him. A judge in 2005 allowed him to expunge his record for a 1995 battery conviction.

But when he recently applied to work as a manager of an Arby's restaurant in Mariniette, Wis., he claims in a federal lawsuit, he was denied the job because his expunged record came up on a criminal background check.

Brandt eventually settled for lower paying job. "I was trying to get a better job and move up. I thought it was all behind me," he said of his conviction. "That basically cost me a job."

At least 40 states give people like Brandt the right to effectively erase their criminal past by sealing or expunging some, usually minor, prior criminal convictions.

But massive private electronic databases of criminal records, which are not always up to date, make some of those supposedly secret records widely available to employers and landlords.

Public court records, once protected by what the Supreme Court called the "practical obscurity" of the nation's decentralized justice system, are now digitized and sold to private companies. Some of those companies compile them into databases of millions of public records.

According to government reports and consumer lawsuits, those databases often contain inaccuracies, reporting criminal convictions for people who have never been arrested and records that should have been expunged.

Criminal justice experts say it is common for people to lose jobs because of those inaccuracies. "We're building a system that creates a scarlet letter that can never be removed," said Robert Sykora of the Minnesota Board of Public Defense, which oversees the state's public defenders.

There are no comprehensive statistics on how often the reports turn up inaccurate information. But a review of court records by ABC News found dozens of lawsuits, on behalf of hundreds of people, filed in the last two years against the major criminal records database companies, alleging that background checks contain inaccurate information about criminal convictions.

"This is obviously an issue that's becoming more and more significant as it becomes easier to get and exchange data," said Chichi Wu, a senior attorney with the National Consumer Law Center.

In a statement, LexisNexis, the company that conducted Brandt's background check, said that the Fair Credit Reporting Act, the federal law that governs consumer reporting agencies, sets out a "detailed framework" for giving consumers access to their background checks and allowing them to correct inaccuracies.

"LexisNexis follows the framework and requirements set forth by the FCRA," the company said.

Arthur Cohen, the former chairman of the National Association of Professional Background Screeners, said mistakes are uncommon. "If mistakes are made, they need to be corrected," he said. "I don't think this is a rampant problem."

LexisNexis fixed Bradnt's report after he complained, he said. The company also fixed a background check for Daniel Johnson, a retired police officer in Slidell, La., after it allegedly turned up a conviction for a different Daniel Johnson.

But, Johnson said, the correction came only after he had lost a job as a security guard at a grocery store, which he was using to make extra money after his house flooded during Hurricane Katrina.

"It was very embarrassing. I had a clean career with the police department for 25 years," he said. "I never even had as much as a speeding ticket."

There has been a surge in interest in criminal background checks in the last 15 years. Private companies conduct millions of such checks a year. By comparison, the number of lawsuits claiming inaccurate information in the reports is relatively small.

Donna Uzell, the chair of the National Crime Prevention and Privacy Compact Council, which sets policy on the use of criminal records for non-law enforcement purposes, said private background screening companies provide a valuable service for employers and landlords.

"People who are doing background checks are doing so for a reason, for the safety of their constituency or out of concern about potential liability they may incur," she said.

But lawyers and advocates say those companies are not doing enough. The information contained in the reports is generally based on searches of names and other data such as dates of birth, but not on fingerprints.

"These reports are being used by all types of social organizations, the NCAA, little leagues, boy scouts, churches," said Leonard Bennett, an attorney who has filed several lawsuits against criminal records companies. "The impact can be devastating."

Background check companies are regulated by Fair Credit Reporting Act, which sets up a process to correct inaccuracies.

Cohen said that fear of identity theft has led many courthouses to redact personal information, such as social security numbers, from court records, making it more difficulty to conduct checks.

Frank Campbell, a former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Policy, who worked on background screening policy, said employers are not supposed to take adverse action against potential employees until the background check is correct.

"As a practical matter, it doesn't really work that way in the real world," he said.

Campbell said in a 2006 report that the government in some cases should allow access to records in the more comprehensive FBI database, which are based on fingerprint identification.

That may have helped Raymond Phillippi, who said he has not been able to get consistent work in more than a year, since he was rejected for a position as a machinist after a background check turned up a false felony conviction for burglary.

"It's been tough," he said. "I wouldn't hire a felon either. But they should make sure they get their information straight."