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Background check flaw almost costs Iraq vet

David was struggling to slide back into civilian life after leaving the Army in May on a medical discharge and spending four frustrating months searching for a job. But the 13-year vet, who served in both Iraq and Afghanistan, got a break in early September, landing a position as a store manager with a major retailer near his Texas home. Then he hit a nightmare snag: A background check turned up a potential criminal conviction in his past. Once before, nearly a decade ago, he'd had a run-in with criminal identity theft, when someone in Virginia used his Social Security Number during an arrest for drug possession with intent to distribute. He worried that same incident had reared its ugly head again. 

"I cannot believe this is happening to me," David said at the time. "I really need this job right now."

David learned of the problem only because a recruiter told the firm had put his hiring on hold and gave him a special number to call at background check provider Lexis Nexis.  An operator there told him it would investigate the situation and get back to him in 15 days. 

David hired an attorney, but he worried those 15 days could cost him dearly. By the time David contacted looking for help, the clock was running.

"I don't know if they are going to hold the job for me or not," said David, who requested that withhold his identity to not harm his employment prospects.

The veteran was put in touch with the Privacy Rights Clearinghouse and its director, Beth Givens.  The nonprofit agency gets these kinds of call all the time, Givens said.

"We've been contacted for many years by individuals who have experienced some kind of criminal identity theft. It can be a real life-destroying experience," Givens said. "We've had people lose job opportunities over this. We've had people forced out of the workforce because of experiences like this."

Fortunately for David, the Privacy Rights Clearinghouse interceded on his behalf, got him an expedited review and he was cleared for hire within days.  Someone with the same first and last name, who had another conviction, had gotten lumped in with David. But Givens worries that many other job applicants, without an advocate on their side, may be missing out on employment because of background check errors. And many may never know.

Firms that use criminal background checks as a reason to deny a candidate are required by federal law to follow a two-step process for informing the applicant.  When the discovery is made, a "pre-adverse action" notice is supposed to be sent to the applicant. Later, if the applicant is rejected, an "adverse action" notice is required. Both are designed to give applicants a chance to correct errors that might appear in background reports and cause a firm to make an unfair decision.

Many times, however, employers who see even a hint of a criminal record simply move on to other applicants, Givens said. 

"They can just say they had a splendid job pool, sorry,” she said. “It is terrible, but we hear that a lot. We think there is a lot of non compliance.”

And pleas from the applicant that there is a mistake often fall on deaf ears. "Even though the individual can prove he is not a criminal, the employer often sees it as black mark anyway," Givens said.

Because many applicants never learn the reason for their rejection, there is no hard data on how many potential employees are caught in this trap. But criminal background checks fall into the larger controversial area of pre-employment screening – hiring firms routinely check numerous for-sale databases when considering applicants, including credit reports.  The Society of Human Resource Management said in a recent survey that 60 percent of employers check credit reports, for example. Rep. Stephen Cohen, D-Tenn. introduced a bill in Congress earlier this year that would severely limit use of credit reports in employment screening, and some states legislatures have enacted similar measures.

('s John Schoen wrote about this earlier this year)

But criminal background checks raise even more thorny issues.  Adults who work with children in schools, athletic clubs and many churches are now required to submit to criminal checks, a development generally welcomed by parents.  On the other hand, criminal background reports are notoriously inaccurate, and often mix up records from several individuals.  Several years ago, I ordered such a report on myself and found I was flagged as potentially having a brother with a murder-related conviction, and a child molestation charge.  Both involved inaccurate links to non-family members, established because of my common surname.

There are some indications that labor groups are gaining traction in efforts to call attention to background check problems.  In California, a new state law requires that applicants must be informed every time a public record about them is accessed – not only when an adverse action is taken.  And In April, the U.S. Census Bureau was hit with a class-action lawsuit accusing it if using criminal background checks that placed minority groups at an unfair disadvantage.  The lawsuit is still pending (you can read more here.)

Still, Givens thinks that the red tape associated with criminal background employment checks is a simmering crisis for American workers, and she thinks federal agencies need to do more to protect applicants.

"We think the Federal Trade Commission should elevate the background check issue to the level of identity theft. They should create a special section for it," she said.


It's not easy to avoid criminal background report trouble once a gremlin gets in the system.  Applicants can order something called a "pre-employment screening report" from companies such as Lexis Nexis, but the report isn't free. And Givens didn't endorse that strategy because the report given to consumers may be different from the report companies purchase during applicant screening.

It's important to pay attention to any negative signals you might receive during the application process. After a rejection, it's OK to ask for a reason -- both formally and informally. If you are hit by several surprising rejections after firms initially express interest, ask directly: “Did you find anything unusual in my background check?”

Applicants who receive an adverse action notice should also receive the name and phone number of the company that provided the pre-employment report.   "It's important to call that company and demand a copy of that report," Givens said.  "If you don't get it, complain to the Federal Trade Commission." Frustrated applicants could also consider complaining to the Equal Employment Opportunity Commission, she said.