Should Background Check Companies Watch Their Backs?

A federal judge in San Diego, California recently ruled that a background screening company Kentech Consulting must face a jury trial over claims that it got a woman fired because of an inaccurate and outdated report it produced back in 2014. Job seekers, potential job seekers, and anyone who may be worried about the contents of a future background check should pay attention to the outcome of the case, as it may have significant implications on how background checks are conducted in the future.

Virginia Abrogina applied for a job with a company called Alere, Inc. in January 2014. She got some good news soon after: Alere was interested in hiring her – they just needed a few pieces of information from her first. Alere referred her to a staffing agency called Suna Solutions, Inc. to finish the hiring process. Most job seekers and current job-havers know the deal: startup paperwork, maybe a drug screen, and a background check. Standard stuff.

Suna sent a request for a background check on Abrogina to Kentech Consulting, Inc. (also known as the Defendant) on February 10, 2014. It submitted its findings to Suna and Alere on February 11. Abrogina was fired on February 12, just two days after Suna requested the background check.

Checking Plaintiff’s Background

Kentech’s investigation consisted of two steps.

Obtaining Abrogina’s criminal history information from Backgroundchecks.com

Finding and copying information from the San Diego Superior Court’s website

Their exhaustive and well-researched search turned up something that Abrogina’s new employer would probably want to be aware of: At some point in the past, Abrogina had been convicted of felony grand theft, for which she was sentenced to three years formal probation, a $680 fine, and restitution.

Employers are allowed to refuse to hire or terminate employees for any number of reasons, including the contents of an applicant or employee’s background checks (within reason). Alere was technically allowed to terminate Abrogina’s employment because of her criminal record, but there was a problem: Abrogina’s conviction had been dismissed and expunged in September 2013.

Reality Check

Abrogina was understandably upset. Her case and conviction had been expunged from her record. Kentech shouldn’t have been able to see it in the first place, let alone include it as part of their report. Not only that, the inclusion of the legally expunged conviction cost her a job that she’d earned through her hard work. She hadn’t reoffended, she’d obviously completed whatever steps the court required to expunge the conviction, and was a good enough candidate to earn a job at Alere before being terminated. A reasonable person would be well within their rights to be at least a little irritated in her situation.

The first thing Abrogina did was send an email to Kentech requesting they update her report. Kentech contacted the San Diego Superior Court, verified that Abrogina’s conviction had been expunged, and sent an updated report to Alere. Had Kentech done this in the first place, of course, the background check would have been accurate. Despite the clear mistake, Alere chose not to rehire Abrogina.

So Abrogina filed suit against Kentech and Alere. She alleged two claims against Kentech for violations of the Fair Credi Reporting Act, two claims against Alere for the same, and one claim against Alere for violating the California Labor Code.

The case progressed at a glacial pace. After questions about jurisdiction and several motions to dismiss and amended complaints, the case was stayed for nearly five years. Abrogina ultimately dismissed her claims against Alere. After five more months of arbitration, Abrogina alleged additional claims against Kentech under California law.

Abrogina is still fighting a fight that started nearly a decade ago. Those additional claims and an attempt to move for class certification were denied, so she’s essentially back to her original claims: Kentech violated the FRCA, and they should be punished accordingly.

The court has denied Kentech’s motions for summary judgment on Abrogina’s claims. The trial is set to begin at the end of November 2023, just a few months shy of the 10-year anniversary of Abrogina’s first interview with Alere.

Watch Your Background

If the case ends in Abrogina’s favor, there’s a good chance it will set a precedent that should give job seekers at least some comfort. It won’t stop companies from looking at your criminal record, credit history, or any of the other personal information they can get their hands on, but it may increase the chance they’ll be held liable for relying on inaccurate information that was obtained without doing enough verification. Unlike many other similar claims, Kentech did not mistake Abrogina’s identity. Instead, they failed to be thorough.

Should Abrogina prevail, it may make companies like Kentech think twice about using shortcuts and potentially inaccurate or outdated sources of information to produce their reports – or else face possible liability for their mistakes like everyone else.