The Daily Item, Sunbury, PA

August 23, 2013

Watercooler: When a background check goes awry

By Karla L. Miller
Special to The Washington Post

— Q: My relative was arrested in 2006 and charged with theft. Turns out he was innocent, and all charges were dismissed with prejudice.

After he shelled out a few thousand dollars for a lawyer and attended court proceedings, the case was supposed to be expunged from all databases.

Now, he is looking for a new banking job. An independent recruiter told him the felony case is still on his record. The file says the felony was dismissed, but it's not supposed to be listed at all. How does he get this removed from all background check databases?

A: If you thought the wheels of justice turned slowly, wait till you hitch up the mule cart of setting the record straight. And even if the charges against your relative had been accurate, he would have a right to earn a living.

If your relative hasn't received a formal expungement notice from the court, says Sharon Snyder of Ober|Kaler, he should call his lawyer, stat.

Unfortunately, it sounds as though his arrest has already been entered into at least one of the nationwide, privately maintained databases commonly used by background screeners hired to check candidates' employment, education, credit and civil/criminal histories. Under the Fair Credit Reporting Act, which covers employment as well as credit applications, consumer reporting agencies must verify public information about arrests and other legal actions. Evidently, whoever looked up your relative's record skipped that step.

For what it's worth, the Equal Employment Opportunity Commission says employers should not base a hiring decision on arrests or even convictions, especially if the incident took place long ago or is unrelated to the job in question. Unfortunately, for someone in banking, a theft accusation seems relevant, and even dismissed charges might still raise flags.

Under the FCRA, an employer must send you an "adverse action notice" if you are denied a job because of your record, so you have a chance to dispute the decision and have the record corrected. The Federal Trade Commission's Consumer Information site (consumer.ftc.gov) explains the law and outlines the process. But since your relative learned about his record through unofficial means, Robin Farmer, president of ScreenThem, suggests he have the recruiter connect him to the screening firm so he can dispute his record.

Your relative's ordeal underscores the need for personal data providers to maintain accurate records, for background screeners to double-check sources, and for applicants with arrest records to know their rights. It's not just data; it's people's lives.

Karla L. Miller writes an advice column on navigating the modern workplace. Each week she will answer one or two questions from readers. Miller has written for and edited tax publications for 16 years, most recently for the accounting firm KPMG's Washington National Tax office.