My applicant says “That’s not me!” What do I do?

The Fair Credit Reporting Act (FCRA) includes a provision for just this scenario! FCRA Paragraph 611: Procedure in case of disputed accuracy exists to spell out the role of Consumer Reporting Agencies (CRAs) when a consumer feels information has been reported in error. Because background screening is not a perfect science and is subject to human error, CRAs can make mistakes, and occasionally do. With criminal records for example, there are often many steps in the chain of custody of a particular record. It is largely the responsibility of the CRA to determine where the source of the error is. This burden should never be shouldered by the employer or for that matter, the applicant/consumer. Having personally handled many disputes initiated by consumers I can assure you that this is a very delicate process that BIS takes very seriously. In the following paragraphs I will describe both the steps that should be taken by the employer and exactly how BIS handles these situations.

When an employer properly follows the FCRA, two notices of adverse action must be sent to the applicant. These notices are commonly known as the Pre-Adverse Notice and Adverse Action Notice. A copy of the Consumer Report and the FCRA document entitled “A Summary of Your Rights Under the Fair Credit Reporting Act” should always be included in both steps. These steps allow the applicant to review the information that a potential Adverse Action will be based on, as well as instructions on how to follow up if they believe there is erroneous information in the report as provided by the CRA.

In addition to an applicant’s right to receive a copy of their Consumer Report upon adverse action, effective September 2005 all consumers have the right to a free copy of their report every twelve months. The Fair and Accurate Credit Transactions (FACT) Act mandates that a CRA post notice that a free copy of the report be made available to the consumer.

OK, so now an applicant has received a copy of their consumer report and they feel that a criminal record was reported incorrectly. Potentially incorrect information in a Consumer Report can cause emotional distress to the applicant and force a defensive posture to the employer. When BIS is notified of this situation we go to great lengths to investigate the issue and clear up anything that may be incorrect. Additionally we will counsel the applicant and the employer throughout the entire process. In many ways we view ourselves as an extension of our clients; we ensure that we handle each and every dispute in a way that not only maintains the integrity of our clients but also makes the applicant comfortable with the entire process. The most common disputes with criminal records are as follows:

• Charges listed incorrectly
• Reporting expunged records
• Felonies amended to misdemeanors
• Disposition information unclear
• Warrants believed to be cleared up
• Information simply does not belong to the individual

Understanding the dynamic nature of criminal records, there are many levels and time frames at which an error might be introduced. It is BIS’ responsibility to determine the substance of the error and who is responsible for correcting it. Many times these errors are easily explained, other times it can get a bit complicated.

After receiving the initial call or letter from the applicant, BIS conducts an investigation as to why an error occurred and to validate the integrity of the record. In approximately 90% of disputes investigated by BIS the original content is validated as correct; the remaining cases generally fall into one of the following categories:

• Court information is incorrect - the court’s public access point has not been updated by court personnel with the most current information, therefore files must be pulled to clear this up. When a mistake is identified, Background Information Services, Inc. will always notify the court clerk to update accordingly
• Clerk interpretation was incorrect - in many courts the records can only be accessed by court personnel. Approximately half of all disputes turn out to be classified as clerk error
• Limited identifiers in court records - often times court records only contain identifiers of full name and Date of Birth. Social Security Numbers are seldom available in court records. Because many names are common, especially in larger metropolitan areas, it is not uncommon to encounter two or more individuals with the same name with the same date of birth. One simply belongs to your applicant and one does not. Often times we can have this cleared up while working with a court supervisor
• Additional hearings not updated in main file - often times when an applicant has fulfilled a probationary period a case may be dismissed. Sometimes this paperwork is not re-filed correctly and the original disposition remains unchanged. When errors such as these occur, court personnel are informed and we attempt to get the main file updated so the next person does not encounter the same problem
• CRA or court runner error - Because background screening is subject to human error, court researchers can make mistakes as well. Fortunately the FCRA dispute resolution process allows 30 days to clear up any mistakes that may have been made. In our experience this is the most uncommon reason for a mistake in a record. Background Information Services, Inc. has several layers of oversight in place to ensure consistently high levels of accuracy
• Identify theft - we have seen several cases over the years where the applicant’s identity has been compromised

Applicants are notified by mail and by phone of the conclusion of the re-investigation; the employer is also notified upon its completion.

We cannot overemphasize that BIS takes each and every applicant dispute very seriously. As an extension of your company we are always conscious of your reputation and exercise careful consideration with each applicant. If you have any questions regarding applicant disputes please feel free to email me at jmorris@employeescreen.com.