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Can I sue for negligent background check procedures?

San Jose, CA |

I was offered a job contingent upon a background check including conflicts of interest. The background company searched, using only first and last name (no middle or ssn), through court records and discovered that someone with the same name as me has filed (as plaintiff) a case and flagged me. They alerted the employer that I had a "flag," knowing that a flag would deny me employment, and did no further research to make sure I was the right person. If I can't get this cleared up in time I will lose my job. If that happens, can I sue the background check company for their obviously deficient procedures which have wrongly identified me? (This is not information that comes up in a normal background check, so I can't just get the records changed). Thanks.

Attorney Answers 4


  1. Best answer

    Unless the facts and circumstances of your potential employment are covered by California Civil Code section 1786.18 (not discernible from your post), then you are unlikely to be able to successfully sue the reporting agency for any conduct relating to searches of public records for info about persons with your first and last name.

    All lawsuits are founded upon allegations of a breach of duty alleged to be owed by the defendant to the plaintiff. Except in some very limited circumstances, largely codified at Civ Code §1786 and labor Code § 432, the law has created few duties of performance owed by reporting agencies to the subject of a report. Very likely the contractual agreement between the prospective employer and the reporting vendor specifies the likelihood of errors given the depth of search requested and paid for, and disclaims liability to the employer who has the option to dig deeper or to exercise at will powers of employment and hire workers whose names do not have flags. It's not a sound business practice, and it likely costs the employer a number of worthy employees, but it may not be unlawful since it is not specifically prohibited (and Labor Code § 432.7 does not appear to apply).

    I will be interested (and hopeful) to see whether other CA attorneys can construct a better analysis with a different result as it seems that the present state of the law is about where we were re credit checks back in the sixties, with equally serious and unfair abuses.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.


  2. Maybe, kinda, sort of iffy. I could frame up a lot of technical potential cause of action and it’s not an impossibility to prevail although it’s probably not likely. Your potential employer simply didn’t provide much information and the background check company worked the information received from your potential employer. It’s a possibility, but I don’t think you’ll find a sharp experienced attorney to take the case on a contingent fee. This is going to be strictly by the hour case. I would anticipate your chances of success at less than 10%.

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  3. The laws which govern consumer reports for employee background checks are very technical and made even more confusing because the law now limits what kind of employers can obtain such reports and for whom (Cal. Labor Code, section 1024.5). You should start by checking to see if the job your were applying for is one which permits the use of consumer reports under this code section.

    Employers permitted to use such reports to conduct background checks have certain defined obligations, if you are denied employment, which i will not go into here. If the law has been violated, there are damages which can be obtained. I do not usually refer askers to specific attorneys on Avvo but will make an exception because I only know of one attorney who has made a specialty suing employers and consumer reporting agencies who do not handle these matters correctly. Try contacting Devin H. Fok, who is located in Alhambra. He knows these laws better than anyone.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  4. A better bet would be simply to clear this up with the employer. It should be fairly simple to prover that was not you.

    Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: ECSEsquire@AOL.com. All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.

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