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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 10929
Experience:  Significant experience in all areas of employment law.
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My Daughter was denied a job opportunity due to miss-information

Customer Question

My Daughter was denied a job opportunity due to miss-information provided on a background check. In addition to other miss-information on her background check the company also contacted her current employer for a employment check which can cause her to loose her current job. I feel that there is a liablity here on the part of the company that performed the background check as employers don't typically order background checks to done unless they plan to make an offer.
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your daughter's loss of her job and the conduct of this background check company.

Can you please tell me if your daughter specifically told the background check company or the prospective employer that she did not consent to them contacting her current boss?

Also, can you please kindly specify the legal question you would like me to address regarding your situation so that I can provide the most tailored answer possible?
Customer: replied 4 years ago.
I'm sure she indicated on her job application that she did not want her current employer contacted. First LexisNexis is the company that performed the background check. The job called for a Bachlors Degree and the background check from LexisNexis indicated that she attended KSU but no degree. She called the Universaity and in 5 secs they confirmed her diploma. The job that she applied for was with UPS. a paid internship with a salary around $45,000 a year. They wanted to fill the job by the 1st of June. She received a copy of the background check on Monday the 4th. LexisNexis didn't feel it was important enough to confirm what she told them and verify directly with her school and contact UPS to set the record straight. With 11% employement rate in her age group and as hard as jobs are to come by I feel this is a Personal Injury suit with punitive damages.
Expert:  Patrick, Esq. replied 4 years ago.
Thank you very much for your reply.

To collect punitive damages, a plaintiff must typically show that the defendant's conduct was "willful and malicious," so unless you can demonstrate that Lexis set out with the specific intent to harm yur daughter, an award for punitive damages will not be a possibility. Further, juries are extremely reluctant to award punitive damages and will typically only do so where the defendant's conduct is particularly egregious.

What you have described may, however, constitute valid grounds for a lawsuit on the basis of common law negligence. Generally speaking, a cause of action for negligence arises where an individual or business fails to exercise the care and diligence that an ordinarily prudent person (or business) would exercise under similar conditions.

If your daughter clearly stated that she did not permit Lexis to contact her employer and Lexis did so anyway, this would likely constitute a failure to exercise reasonable care. Furthermore, failure to properly verify someone's college diploma would likely also constitute a breach of their duty to exercise reasonable care because all that was presumably required was a simple call to the university's records office.

If I may be frank, though, damages in this kind of suit would likely be confined to your daughter's loss of employment from her previous job and not from the "missed opportunity" of being hired by UPS. This is because the law will only recognize damages which are sufficiently certain, and it is impossible to say whether your daughter would have been hired had this information relating to her education not been misrepresented to UPS.

So to summarize, a cause of action may exist on a theory of simple negligence, but damages would likely be limited to loss of previous employment and not the lost opportunity of future employment.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with my service and explanation of the law, so please do not hesitate to contact me with follow-up questions. Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Patrick, Esq., Lawyer
Satisfied Customers: 10929
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Ok, thank you for your response, I don't like it, but I understand. Seems that more care should be taken by these company's and they should be held accountable in some way when they don't. At this point we have no way of knowing how many other companys use LexisNexis (many I suspect) and how many job opportunites she has missed out on because of their flawed background checks. I don't even know where to start to get them to straighten it out. When I called Lexis to discuss they of course let me know they can't discuss with me due to legal issues and the Privacy Act, now they want to protect her!

Very frustrated!

Expert:  Patrick, Esq. replied 4 years ago.
I agree that is very infuriating.

If you are concerned about continued misrepresentations, the best course of action would likely be to provide proof of your daughter's degree to Lexis along with a note that further misrepresentations will be regarded as negligent. Hopefully this way they do not continue to lead employers to believe that she lacks a college degree.

I wish you and your daughter the very best. Times are certainly tough out there for young people entering the work force.

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