Deep Background

Background checkers: Pay close attention to middle names

Background screeners hired to do a criminal check on a job applicant named “David Smith” need to make a reasonable effort before reporting to the employer that he’s a convicted felon.  That was the finding  of a three-judge federal appeals court panel in Michigan in September 2016, ruling against LexisNexis Screening Solutions. David Alan Smith was applying to be a delivery driver with a liquor company, and gave his prospective employer his first, middle, and last names, Social Security number, driver’s license number, date of birth, street address, and phone number.  The liquor firm hired LexisNexis to perform a criminal check.  The liquor company did not pass on to the screener his middle name, Alan.  LexisNexis found a David Smith born on the same day in 1965 – David Oscar Smith, convicted in Florida for uttering a forged instrument.  LexisNexis passed on that information to the liquor firm, which withdrew its job offer.  David A. Smith fought back, pointing out he had never been convicted of anything, and he later got the job.  He sued the screening company  for causing him six weeks of lost wages, and for violating the Fair Credit Reporting Act.  His lawyers said at trial that LexisNexis had received an accurate credit report naming him as “David A. Smith,” but failed to note the discrepancy with “David Oscar Smith.”  (LexisNexis, though, said there was “nothing unreasonable in LexisNexis not cross-checking information in a criminal background report and information in a separate credit report,” court documents said.)  The jury found in Smith’s favor, and the court awarded him $75,000 in compensatory damages and $150,000 in punitive damages.  The screening company appealed.  It said, among other things, that it conducts about 10 million background checks annually, with only .2% ever being disputed.  The appeals panel partially reversed the trial court, finding that the screening firm had negligently violated the FCRA, but had not done so “willfully,” and therefore threw out the $150,000 punitive award.  But finally, the appeals court concluded, Lexis should have been more careful, especially given the name of the man they were reviewing.  The appeals court noted, “’David Smith’ is an exceedingly common first-and-last-name combination—to the tune of over 125,000 individuals living in the United States.”

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