You have never been arrested. The report the employer is holding says otherwise: a conviction, a case number, a county you have never lived in, under your name. The first thing to know is that this is not a clerical fluke and it is not a mystery. It is the predictable result of a screening company matching a public record to you on too little, and the Fair Credit Reporting Act has had a rule about that since before most screening companies existed.
How a stranger’s record ends up under your name
Screening companies do not have a national criminal database that knows who you are. They search county, state and federal court records — and commercial aggregations of those records — for names, and then decide which of the hits belong to you. Court records rarely carry a Social Security number. Many carry no date of birth. So the match is made on the identifiers the company chose to use, and when the company matches on a first and last name and little else, a David Smith in Michigan collects the fraud conviction of a different David Smith.
That is not a hypothetical. In Smith v. LexisNexis Screening Solutions, the screening company was given David Alan Smith’s date of birth but not his middle name, and returned the fraud conviction of David Oscar Smith. The company’s own form asked for a middle name but did not require one, and it never checked the criminal hit against a credit report it had that showed the applicant’s middle initial. Mr. Smith’s start date slipped six weeks while he cleared it up. A jury awarded him $75,000 for the lost wages, the distress and the damage to his reputation, and the Sixth Circuit let that award stand, holding that a jury could find the company negligent for not requiring the middle name. (The jury’s separate $150,000 punitive award did not survive, because the court found no evidence the company acted willfully — a distinction that matters below.)
The versions I see most: a common name matched on name alone; a father and son with the same name and no suffix in the court record; a partial date of birth, year only, matched to a stranger born the same year; a record from a state you have never set foot in; and the applicant whose own old record was expunged, replaced by a different person’s live one. In each, the entry is real — it is simply not yours.
The rule the screening company is measured against
Whenever a consumer reporting agency prepares a consumer report, it “shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” That is the statute, and a background check for employment or housing is a consumer report under it. The Consumer Financial Protection Bureau, the agency that supervises the large screening companies, issued an advisory opinion in November 2021 saying what that rule means for matching: a company that uses inadequate matching procedures, “including name-only matching,” in preparing consumer reports “is not using reasonable procedures to assure maximum possible accuracy.” Name-only means matching on whether your first and last names are the same as, or similar to, the names on the record. A company that does that and hands the employer a stranger’s conviction has, on the Bureau’s reading, failed the standard.
There is a second rule for criminal records in employment reports. When a screening company reports public-record information that is likely to hurt your chances of a job, it must either tell you at the time that it is doing so, with the employer’s name, or keep strict procedures to make sure what it reports is complete and current. A record that was never yours fails the “complete and current” test on its face.
What you were owed before the employer acted
An employer that intends to act on the report must first give you a copy of it and a written summary of your rights, before the decision is made, so that you can answer it. If the offer was withdrawn in the same message that enclosed the report, or you were never sent the report at all, the employer skipped that step, and that is a separate claim against the employer. After the decision, the employer must tell you the screening company’s name and contact details, that the company did not make the decision, and that you can get a free copy of the report from it within 60 days. Failed a background check walks through both notices in order; if you have neither, ask the employer for the report in writing today and keep the reply.
How to get the record off, and prove whose it is
Ask the screening company for your full file, in writing. You are entitled to it, and it is the only way to see every record the company has attached to you rather than the one the employer mentioned. Then dispute the entry with the company, in writing, and give it the identifiers that separate you from the other person: your full name with middle name and any suffix, your date of birth, your Social Security number, your address history, and — where you can get it — the court’s own docket showing the defendant’s identifiers. The company has 30 days to reinvestigate and must delete what it cannot verify as yours. Write to the employer at the same time, say the record is not yours and is under dispute, and ask it to hold the position. How to dispute a background check has the letter and the order of steps; background check errors covers the other error shapes if the report has more than one.
Do one more thing that most people skip: pull your own credit reports. The same matching failure that put a stranger’s conviction on your background check puts a stranger’s accounts on a credit file, and if your name is common the two problems tend to travel together — a mixed credit report has its own page and its own dispute route.
When it becomes a claim
If the record was not yours and the company reported it anyway, you have a claim against the screening company under the Fair Credit Reporting Act, and a separate one against the employer if it acted without the advance copy and summary. For a negligent violation — the Smith outcome — you recover your actual damages: the wages from the job you lost or started late, the offer you gave up, the weeks of searching, the distress of being treated as a felon, and your attorney’s fees. For a willful violation the Act adds statutory damages of $100 to $1,000 per violation and allows punitive damages; willfulness is what the Smith court did not find on that record, and it is the difference between a negligence recovery and a larger one, so keep every document that shows what the company knew and when. Suit must be filed within two years of discovering the violation and never more than five years after it happened. Because the fees shift to the company when you win, I take these cases on contingency: you pay nothing unless we win. Can I sue a background check company? sets out the claim; employment background checks explains how I handle the screening company and the employer as separate defendants; every rule and dollar figure above, with its section number, is on one page at Background Checks by the Numbers.
Keep the report, the notice or e-mail that withdrew the offer, your dispute and its delivery record, the company’s answer, the court record for the other person, and the pay figures for the job. That file is the case. I review it at no cost.
Admitted in Pennsylvania and New Jersey; available to appear pro hac vice in other federal courts. You pay nothing unless we win.
Sources: 15 U.S.C. §§ 1681b(b)(3), 1681e(b), 1681g, 1681i, 1681k, 1681m(a), 1681n, 1681o and 1681p (United States Code); Consumer Financial Protection Bureau, Advisory Opinion on Name-Only Matching (Fair Credit Reporting; Name-Only Matching Procedures), issued November 4, 2021; Smith v. LexisNexis Screening Solutions, Inc., 837 F.3d 604 (6th Cir. 2016); Federal Trade Commission, Background Checks: What Employers Need to Know (with the Equal Employment Opportunity Commission); Consumer Financial Protection Bureau, A Summary of Your Rights Under the Fair Credit Reporting Act (12 C.F.R. part 1022, Appendix K).
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