Labor & Employment Law Daily Background check that pulled sex offender record for volunteer’s father did not violate FCRA
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Thursday, December 10, 2020

Background check that pulled sex offender record for volunteer’s father did not violate FCRA

By Wayne D. Garris, Jr.

The plaintiff had the same name as his father, who had a sex offender record, but the reporting agency acknowledged that the record might not belong to the plaintiff and required further investigation.

Affirming a district court’s judgment in favor of a consumer reporting agency, the Eleventh Circuit held that the agency did not violate the Fair Credit Reporting Act when its background check of a prospective Little League volunteer identified the sex offender record of the plaintiff’s father, with whom the plaintiff shared the same name. The court concluded that the background report did not violate the FCRA’s “maximum possible accuracy” requirement because it was factually correct that the plaintiff shared a name with a sex offender; and the record was not likely to be misleading because the reporting agency informed Little League that further investigation was necessary (Erickson v. First Advantage Background Services Corp., December 4, 2020, Grant, B.).

The plaintiff signed up to serve as an assistant coach for his son’s Little League team. As part of the application process, he authorized the Little League to run a background check, which included a search of registered sex-offender records. He provided Little League with his name, date of birth, social security number, and home address.

Background check. The league submitted the information to a consumer reporting agency. The agency prepared a background report on the plaintiff that noted there was a sex offender report in another state that matched the plaintiff’s name only. The report also stated, “[t]his Record is matched by First Name, Last Name ONLY and may not belong to your subject. Your further review of the State Sex Offender Website is required in order to determine if this is your subject.” The report then directed Little League to the state’s sex-offender data to further research the issue noting that Little League might conclude that the records did not belong to the plaintiff.

Notice to the plaintiff. The agency also sent the plaintiff a letter informing him that he shared the same name with a “known criminal or registered sex offender” and that the record would be sent to Little League for review. The letter also explained that Little League was aware the record did not belong to him and would investigate further. It also stated that the potential match was confidential and would not be provided to anyone outside of Little League.

The plaintiff knew that the record belonged to his biological father, from whom he had been estranged for several years. He contacted the reporting agency and Little League to explain the situation. He also decided not to coach his son’s team because of his humiliation and changed his family’s last name. The plaintiff alleged that he had gone through the “painful” process of explaining the reason for his name change to his military superiors, colleagues, and friends.

Lawsuit. Two months after receiving the sex-offender notification, the plaintiff sued the consumer reporting agency alleging that it failed to “follow reasonable procedures to assure maximum possible accuracy” of the information in the report, in violation of the FCRA. The district court granted judgment as a matter of law finding that the plaintiff failed to show the report was inaccurate and caused him harm, as required by the FCRA. The plaintiff appealed.

“Maximum possible accuracy.” The FCRA requires consumer reporting agencies to follow “reasonable procedures” to ensure “maximum possible accuracy” of information in consumer reports. The court explained that courts differ on the definition of “maximum possible accuracy,” but it concluded that for a report to reach maximum possible accuracy, it must contain factually correct information and be objectively unlikely to mislead its user.

Was the report accurate? As to the report at issue here, the court concluded that it was factually correct. The report merely stated that a registered sex offender in Pennsylvania shared the plaintiff’s first and last name—which was factually true. Further, the report did not wrongfully conclude that the record belonged to the plaintiff. In fact, the agency took steps to explain the record was a match by name only, that it may belong to the plaintiff, and that further investigation was necessary to determine if the record belonged to him.

The plaintiff argued that the record was inaccurate because it included a sex offender record, and he was not an offender. The court disagreed, reiterating that the report did not assign the sex-offender record to the plaintiff, and further stated that the record may notbe connected to him.

Was the report misleading? Lastly, the court held that a reasonable user of the report “would not be misled by the report to such an extent that it would take negative action against [the plaintiff].” The Little League knew the agency was conducting a first and last name search only and was also informed that it could not attribute the sex offender record to the plaintiff without further investigation.

The court concluded that the report was “factually correct” and free from potential misunderstanding. It acknowledged that the report may have harmed the plaintiff, but that harm was not because the report was inaccurate. Because the report was accurate, no FCRA violation occurred, and judgment for the reporting agency was appropriate.

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