In an article published this week by the Shriver Center, Preventing Background Screeners from Reporting Expunged Criminal Cases, Sharon Dietrich offers helpful advice for advocates on to how to combat the problem posed by the reporting of expunged and sealed criminal records by private commercial background screening services. Her advice is based partly on her own organization’s participation in litigation under the federal Fair Credit Reporting Act (“FCRA”) against one of the country’s larger background screeners — an experience that she recounts in detail.

Dietrich identifies the problem of improper private reporting of expunged records as one that “threatens to undermine the whole strategy of broadening expungement as a remedy for the harm of collateral consequences.” She describes the underlying issue as follows:

 [T]he commercial background-screening industry, which runs the lion’s share of the background checks obtained by employers and landlords, sometimes reports those expunged cases long after they have been removed from the public record. Companies in the background-screening industry typically maintain their own privately held databases of criminal cases from which they generate background checks. When updating their data from public sources (often state courts), these screeners often do not use methods to determine whether cases that were reported by their sources have been removed (i.e., expunged or sealed), and they continue to report them.

Dietrich encourages advocates and their clients to be proactive about keeping their expunged records out of public hands by obtaining copies of their files from the larger background screeners (they are required to share them by law) and by reporting expungements directly to screeners. She also encourages advocates to pressure entities that sell criminal records, like the courts, to regularly provide buyers with expungment data and to require buyers to regularly remove expunged records from their databases.

If expunged records are still being reported or have already been reported, Dietrich encourages considering litigation under the Fair Credit Reporting Act, which requires background screeners to follow “reasonable procedures” to ensure the accuracy of the records they report (“strict procedures” in the employment context).

For a client who has sustained lost wages or other damages because of the reporting of an expunged or sealed case, litigation under the Fair Credit Reporting Act should bring relief. Individual cases are not overly complicated and have some deterrent effect if the client recovers a monetary award.

Dietrich’s recounting of the litigation in Giddiens v. LexisNexis — in which her own organization, Community Legal Services of Philadelphia, brought a class action suit against LexisNexis under FCRA after it was discovered that one of CLS’s expungement clients had been denied employment based on a record that was expunged nearly 2 years earlier — offers a practical perspective on the choices, challenges, and outcomes that may be expected in large-scale FCRA litigation, as well as a look at how criminal data is obtained and shared by commercial providers. The case eventually settled and LexisNexis agreed to change its practices and to make cash payments to 300 identified class members. Dietrich’s reflection of the pros and cons of the litigation strategy and its outcome are particularly insightful.

Sharon Dietrich’s full article is available at this link.  Registration with the Shriver Center website is required to view the article, but it is fast and free.

NOTE: Last month, Community Legal Services filed a similar class action FCRA lawsuit in the Eastern District of Pennsylvania against commercial screener Realpage, Inc., alleging improper reporting of expunged convictions to landlords.  The complaint in that case can be viewed here.