Class Action Alleges First Advantage Included Outdated Criminal History Info in Background Reports

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A proposed class action lawsuit claims First Advantage Background Services Corp. has unlawfully included outdated criminal history information in consumer background reports.

According to the 25-page case, the Fair Credit Reporting Act (FCRA) prohibits consumer reporting agencies from furnishing adverse non-conviction information older than seven years prior to the date a report is issued. Moreover, the California Investigative Consumer Reporting Agencies Act (ICRAA) prohibits investigative consumer reporting agencies from reporting any criminal history information, including convictions, older than seven years, the lawsuit says.

First Advantage, described as “one of the largest background-check screening companies in the United States,” has what the lawsuit alleges to be “a regular policy and practice” of reporting potential employees’ “life-long criminal history,” including arrests, dismissed charges and other items that do not reflect a conviction, from the FBI fingerprint database “with no time limitation.”

The plaintiff, who filed the suit under a pseudonym, says he applied for a job with Wells Fargo’s Community Banking division in Pasadena, California in early March 2020 and agreed to submit to a First Advantage background check for which his fingerprints were taken. According to the suit, Wells Fargo informed the plaintiff in early April 2020 that it may take adverse action against him based on information in the background check, which showed he had been arrested over 10 years prior to the date of the report.

The lawsuit alleges First Advantage obtained the plaintiff’s arrest record from the FBI using the man’s fingerprints. 

The complaint alleges the copy of the First Advantage report provided to the plaintiff contained no information with regard to the July 2010 arrest referenced in Wells Fargo’s letter, and stated only that First Advantage had not found any criminal history information records for the plaintiff in the Los Angeles Superior and Metropolitan Municipal Courts’ records. Though the plaintiff requested from First Advantage a disclosure of his complete file, the report the man received similarly was without the results of the FBI fingerprint database search, the suit says.

“Neither First Advantage nor Wells Fargo ever provided to Mr. Doe the First Advantage report containing the results of the FBI fingerprint database search including the Obsolete Criminal History Information regarding him,” the complaint charges.

The lawsuit goes on to allege the plaintiff was informed by Wells Fargo on April 24, 2020 that he was not eligible for the position in light of the information contained in the First Advantage background report.

As a regulated consumer reporting agency, First Advantage is prohibited under the FCRA and ICRAA from reporting adverse information that is more than seven years old, the case alleges. The suit attests that although the defendant has argued that it is exempt from the statutes’ requirements because it is merely “channeling” information from the FBI, First Advantage, unlike other “channelers” authorized to submit fingerprints to the FBI and receive criminal history information, is a consumer reporting agency (CRA) who assembles the information for the purpose of furnishing consumer reports and therefore subject to the laws’ requirements.

“Under any objectively reasonable interpretation of FCRA’s plain language, however, a company like First Advantage that ‘regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information’ is a CRA regardless of its role in assembling or evaluating any particular item of consumer information,” the complaint charges.

Per the case, First Advantage’s apparent policy and practice of failing to screen out non-conviction criminal history information older than seven years from the reports it provides to third parties, including potential employers, “seriously harms the subjects’ reputations, invades their statutory rights, and puts them at risk of being denied employment.”

The lawsuit further claims First Advantage unlawfully failed to provide the plaintiff and other job applicants with reports showing any adverse information reported about them from the FBI fingerprint database or any means by which to request a copy of this information and dispute potential errors.

“Indeed,” the complaint states, “many consumers may simply not receive the jobs they applied for without ever knowing the reason why.”

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