Employer argues background check was actually a misconduct investigation, court disagrees

The defendant, DHA Group, Inc. claims its background check on an employee was not a consumer report but rather part of a misconduct investigation, and therefore not entitled to the protections of the Fair Credit Reporting Act.

DHA Group claimed that the plaintiff, Gennaro Mattiaccio’s, alleged misconduct stemmed from being “far less than candid” when discussing his background prior to being hired by DHA. When suspicion arose that there were past criminal convictions Mattiaccio failed to disclose, DHA ordered a background check on Mattiaccio in an attempt to substantiate their suspicions. However, Mattiaccio claims that DHA only ordered the background check as an act of retaliation for Mattiaccio previously filing a complaint against the employer.

While the argument that a background check is not a consumer report, and thus not bound by the FCRA, if it is procured in conjunction with an employee misconduct investigation is a valid one, the court ruled that in this particular case there was a “factual dispute” to the “genuine motivation” for the procurement of the background check.

Although the court did not rule in favor of DHA, the case itself is an exercise in the fact that courts will consider the employee misconduct exception to the FCRA if the defense is supported by the facts.

Source: Troutman Sanders, LLP, 4/27/2015

Posted: May 7, 2015