The following post, by Sharon Dietrich of Community Legal Services of Philadelphia, addresses the question whether reporting of an expunged or sealed case by a commercial background screener violates the Fair Credit Reporting Act. Sharon is a national authority on FCRA as applied to criminal records, and we are pleased to reprint her analysis below.
The Fair Credit Reporting Act (FCRA) governs the accuracy of criminal background checks prepared by commercial screeners. While there is little case law holding that the FCRA prohibits commercial screeners from reporting expunged or sealed cases, there is little doubt that this is the case.
Two FCRA provisions are applicable to this issue.
- Commercial screeners must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report. 15 U.S.C. §1681e(b).
- A commercial screener reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the commercial screener must maintain strict procedures to insure that the information it reports is complete and up to date. 15 U.S.C. §1681k.
Numerous FCRA class actions have been brought under one or both of these provisions to challenge a commercial screener’s reporting of expunged or sealed cases.
- Henderson v. HireRight Solutions, Inc., No. 10-459 (E.D. Pa. 2010).
- Robinson v. General Information Services, Inc., No. 11-7782 (E.D. Pa. 2011).
- Roe v. Intellicorp Records, Inc., No. 1:12-cv-2288 (N.D. Ohio 2012).
- Giddiens v. LexisNexis Risk Solutions, Inc., No. 2:12-cv-02624-LDD (E.D. Pa. 2012).
- Stokes v. RealPage, Inc., No. 2:15-cv-01520-JP (E.D. Pa. 2015).
All of these cases were settled, with the settlement typically requiring the discontinuation of the use of stale data or the screener to change its practice to verify data.