Dive Brief:
- A Washington, D.C.-area job seeker sued ADP’s background screening arm for allegedly violating the Fair Credit Reporting Act by inaccurately reporting to a prospective employer that he was a convicted murderer.
- In August 2023, the job seeker received an offer of employment conditioned on passing a background check, which the employer contracted with ADP Screening & Selection Services Inc. (SASS) to perform, the complaint in Mott v. ADP Screening and Selection Services, Inc., alleged. SASS sold the employer a report that included a criminal record appearing to list the job seeker’s name as an alias for a convicted armed murderer, according to the Dec. 28 lawsuit. However, had SASS performed “even a cursory review” of widely available public court records, it would have realized the murder conviction belonged to another person, the lawsuit alleged.
- Specifically, there were obvious discrepancies between the convicted individual, who is in prison, and the job seeker, including that the job seeker never used an alias; his Social Security number was entirely different; his age was different; and his address history confirmed he did not live and never had lived at the address listed for the convicted individual, according to the lawsuit. The job seeker disputed the report and submitted his findings to SASS, which removed the criminal record, the complaint alleged. He then sued SASS for violating the FCRA by not using “reasonable procedures to assure the maximum possible accuracy of the information” it provided the employer.
Dive Insight:
In a statement to HR Dive, the company said, “At ADP, integrity and compliance is of utmost importance to us and we have strong and proven procedures in place that comply with FCRA rules. As this is ongoing litigation, we cannot share additional details at this time.”
ADP’s website states that it uses “specialized screening tools, sources, processes and proprietary methods” to provide “accurate and thorough information,” and, to ensure the report is actionable, applies “data privacy and security procedures” and “continuously vet[s] and test[s] our data sources.”
Last year, the company settled a proposed class action alleging that SASS incorrectly reported that a job seeker was a convicted drug dealer. According to the complaint, to conduct the background check, SASS used both its own software and a third-party vendor, which checked criminal records at a local courthouse.
Although SASS found no criminal records, the vendor allegedly falsely reported the job seeker’s birth date matched that of an individual named in court records as having a felony drug conviction, the lawsuit said. SASS allegedly did not conduct further investigations to check if the job seeker and the individual named in the court record were the same person. ADP settled the suit in November 2023 for an undisclosed amount.
Generally, “it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check,” the Federal Trade Commission, which enforces the FCRA, emphasizes in a guidance.
However, any time an employer uses an applicant’s or an employee’s background information to make an employment decision — regardless of how it got the information — it must comply with federal and state anti-discrimination laws, the FTC guidance adds. HR pros are likely familiar with guidance from the U.S. Equal Employment Opportunity Commission on conducting background checks in line with federal anti-discrimination laws.
Also, because employment background checks are considered consumer reports, employers — and background check companies — must comply with the FCRA as well. Before an employer conducts a background check, it must inform the applicant or employee in writing in a stand-alone format (not the employment application) that it might use the information for employment-related decisions, according to the FTC. Employers must also get written permission from the applicant or employee to get the report. An agency blog offers tips on how to draft these notices.
Additionally, before taking adverse action, such as rejecting a job applicant, reassigning or terminating an employee, or denying a promotion, employers must give the applicant or employee: 1) notice of its decision, including a copy of the report it relied on to make the decision; and 2) a summary of their rights under the FCRA, which the background check company providing the report should have given the employer, according to an FTC post.
In this case, the job seeker alleged that after SASS notified him it had removed the criminal record and submitted a corrected report to the employer, the employer emailed him that he had cleared the security process and gave him a start date. He alleged that fear of losing a good-paying job and being falsely represented as a murderer caused him stress, anxiety and fear of damage to his reputation. He is asking for damages for lost wages, loss of time and money trying to correct the report, and emotional distress.
