Uber’s California Background Check Lawsuit and Ensuring Public Safety
When it comes to employment background checks, employers have to comply with an assortment of regulations, including the federal Fair Credit Reporting Act (FCRA) as well as the EEOC’s Enforcement Guidance on use of criminal records. While both of these examples restrict how employers can utilize background checks in their hiring processes, the recent case of ride-sharing company Uber presents the opposing point of view: When are employers not doing enough to ensure public safety?
Let’s take a closer look at the Uber case and its implications for employers.
California’s Lawsuit Against Uber for “Safe Rides” Fees and Inadequate Background Checks
In December 2014, California filed an unlawful business practices suit against Uber, charging the company with misleading consumers about safety. The suit was brought jointly by San Francisco and Los Angeles district attorneys. The lawsuit finds several issues with Uber’s service, centering on allegations that Uber misleads customers about its business and safety practices. Among other complaints, Uber is charged with allegedly misrepresenting the quality of its background checks and fraudulently charging a $1 “safe rides fee.”
Last week, district attorneys of San Francisco and Los Angeles “offered perhaps the most concrete evidence to date that people convicted of murder, sex offenses and various property crimes have driven for Uber,” states an article for The New York Times. According to the district attorneys, Uber failed to uncover the criminal records of 25 drivers in the two cities. The charges were made in a 62-page amended complaint to the civil suit originally filed in December.
The amended suit contains details about the crimes. For example, one driver was convicted of second-degree murder in Los Angeles in 1982, and spent 26 years in prison before being paroled in 2008. Another driver had a felony conviction for residential burglary in 2010, a misdemeanor conviction for criminal damage to property in 2009, another misdemeanor conviction in 2008 for breaking into a car, and a history of speeding tickets.
Limitations of California Law
As a California employer, Uber can only receive information about job applicants and consider criminal convictions within seven years. Additionally, the California sex offender registry database is missing about 30,000 names because those individuals have lawfully petitioned to have their names removed. In a recent blog post, Uber argues that “every system of background checks that is available today has its flaws.” This is certainly the case when it comes to complying with California law.
Why Fingerprint Background Checks Are Not the Answer
While the state of California makes employment background screening challenging for employers, utilizing a biometric-based search such as the FBI fingerprint background check is not more effective. Background check industry experts agree that the the FBI fingerprint database is far from perfect and should not be regarded as the ‘gold standard’ for comprehensive and accurate background screening.
In 2014, at least 600 drivers who previously worked as taxi drivers in San Diego, Los Angeles and San Francisco failed Uber’s background check process, including dozens who had convictions for sex offenses, DUIs, child endangerment or assault or battery, reports Ellen Huet in a recent Forbes story. These cities require fingerprint checks for all taxi drivers, which means the biometric-based checks were not successful in uncovering their criminal history.
To summarize, the key issue prosecutors have found with the Uber case is how the company overstates how safe it is. In this case, Uber is caught between two conflicting groups. First, there’s California’s state law that limits the use of background check reporting to convictions within seven years. Then there’s the Los Angeles and San Francisco district attorneys that are arguing that the company is misrepresenting the safety of their background check program and not keeping the public safe from harm.