Does Airbnb do criminal background checks? Yes. Policy sparks backlash among consumers

Bethany Hallam has made no secret about her past struggles with drug addiction. She ran for her seat on the Allegheny County Council in Pennsylvania on a platform of improving the county's jail and public transportation system because she'd spent time in that jail and lost her driver's license for a time.

So, she was confused in September when she attempted to book a short-term stay in Florida through Airbnb – something she'd successfully done many times in the last six years – only to have her reservation canceled and her account banned because of a past criminal conviction discovered on a background check.

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"My background has not changed since they claimed the policy went into effect," she said. "And I have booked with Airbnb dozens and dozens of times and never had a single problem."

Hallam learned she wasn't alone. After posting about the incident on social media and being interviewed by a local news station, she got messages from others who'd been banned by Airbnb and discovered the company it uses to run background checks, Inflection, has been sued numerous times for allegedly providing false information on consumer background reports.

How is Airbnb running background checks?

Airbnb began using Inflection to conduct background checks on hosts and guests in 2016 to ensure safety when someone is renting a home. Since then, users have shared stories about being banned for minor offenses like having a dog off leash, being mistaken for people with the same first and last name and having a felony on their report that was actually classified as a misdemeanor or pleaded down to one.

Airbnb's policy states that "removal depends on the severity of the criminal history" and "lesser crimes like disorderly conduct or marijuana possession are not removable offenses." Hallam's seven-year-old conviction was for drug possession.

The company also says it has "a rigorous, evidence-based approach to assess whether someone can be reinstated after removal." But people who have sued say they attempted to fix the issue through the appeals process with no luck, according to attorney Daniel Cohen of the firm Consumer Attorneys who's represented consumers against Inflection.

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"As part of our efforts to protect our community, Airbnb runs standard criminal background checks for Hosts and guests in the U.S.," an Airbnb spokesperson told USA TODAY. "We know that no background check system is perfect and so we continue to work with criminal justice experts, academics, advocates and our vendors to evolve our policy and appeals process to make it as effective and thoughtful as possible."

Are background checks fair in this case?

Advocates for people with prior convictions and those formerly incarcerated say the proliferation of background check companies – using vast amounts of data available online to quickly run someone's history for everything from house and car rentals to babysitting and handyman services – means the detrimental impacts of even a minor conviction can follow people around forever and impact their ability to work and live where they want.

"A lot of times, the legal record that is attached to their name that's something that happened in their past. And I get it, you know, there are certain legal records where people get squeamish… but these blanket bans don't make any sense," said Jay Jordan CEO of the Alliance for Safety and Justice and founder of TimeDone.

"So pre-9/11, less than 40% to 50% of landlords were doing background checks. Post-9/11, the background screening industry exploded," Jordan said.  "Now, 4 out of 5 landlords do background checks. Nine out of 10 employers do background checks and these are blanket bans. Anything pops up, there's no discretion."

Companies that run background checks have to follow the Fair Credit Reporting Act, which requires they ensure maximal maximum possible accuracy on any check of a person's reputation, including credit checks and criminal background checks.

The Fair Credit Reporting Act also says consumers have the right to see what's in their report and be notified when information inside it is being used against them. That's why Airbnb must send out an email saying they banned you because of a criminal background check.

The law also says background check companies have a duty to investigate disputed information and cannot report negative information that is older than seven years old.

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"We are using data and it's just data about a person that is decades old that does not paint the picture of who people are today," Jordan said.

His organization recently worked to pass California Senate Bill 731, which expands the state's automatic sealing of criminal records so more people can get a clean slate and access employment and housing opportunities.

"I don't fault the companies for saying this information is out there," Jordan said. "The fundamental problem is that when government doesn't give us guidelines on what rehabilitation means, then you have the Airbnbs and the Care.com and the Nanny Lane and the Turos and the Ubers, and the Lyfts and the property management companies basically saying well, we're going to make our own determination because if we get sued, then you know that's on us."

He pointed to a 2006 study published in the Criminology & Public Policy journal that shows if a person is crime-free for more than five years after their sentence, the risk of them committing another crime is the same as someone who's never committed one.

"So if we go by that standard, that relieves some of the pressure from the sharing economy industries like Airbnb," Jordan said.

Are these reports accurate?

Inflection says it follows the Fair Credit Reporting Act. The company has settled numerous lawsuits in recent years alleging it failed to ensure accuracy under that law, including several brought on behalf of clients by the firm Consumer Attorneys.

Founding partner Daniel Cohen said these cases are typically settled without any admission of wrongdoing on the part of the background check company.

He said the most common scenarios he sees are people being mixed up with someone with the same first and last name, crimes that were expunged showing up on the background check and crimes that were pleaded down to misdemeanors or otherwise changed to lesser offenses being reported as felonies on the background check.

"I personally would want Airbnb doing a background check on somebody before I let somebody stay in my home," Cohen said. "The problem is that the middleman that Airbnb is using, the background check company Inflection and various other background check companies that they use, are coming up with false reports."

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He recently had clients who were trying to go to Napa Valley for their anniversary and the day before their trip, Airbnb canceled their reservation and held the $3,500 deposit.

"The client finally gets his background check report, and he's being mixed up with somebody else entirely," Cohen said. "This person has a common name. But at the end of the day, he only has one Social Security number (and) one date of birth."

Cohen said expunged records showing up or the misclassifications of crimes can happen if the company running the background checks isn't able to get updated court records on a regular basis. Companies like Inflection typically buy records in bulk from vendors who may only be able to get updated records from some courthouses once a year or so, Cohen said.

"We understand people's lives are affected by the results we deliver, so we're committed to the highest standards of accuracy and fairness," said David Patterson, spokesperson for Checkr, the parent company of Inflection. "As a consumer reporting agency regulated under the Fair Credit Reporting Act, we only report criminal records that have been filed in a court of law. We take any disputed inaccuracies seriously and promptly investigate and remediate these when appropriate."

Are more companies going to start soliciting background checks?

With the sharing economy continuing to grow, experts say the negative impacts of increased background checks will also rise.

"There's going to be consumer reports for everything and people are going to want instantaneous results," Cohen said. "It's really unfortunate what's happening now, and I think it's only going to get worse."

The Alliance for Safety and Justice estimated in 2020 that 78 million Americans have some sort of past crime on their record.

Jordan said this means background check laws and policies will continue to exclude more people from jobs, housing and services unless more is done to address the problem.

Is Airbnb changing its policy?

Author and activist Marlon Peterson attempted to work with Airbnb to update its policies years ago after his own ban from the platform in 2018 prompted him to write a guest column for USA TODAY.

In it, he explained how he booked accommodation in Washington, D.C., through Airbnb because he was helping organize two busloads of youth from New York City for the March for Our Lives.

"I got an email telling me I was denied the place that I rented, so I had to get a hotel room instead. And they had said that it was based on evidence found online or something like that," Peterson said.

He knew it was easy to find out online that he'd spent 10 years in prison for his role in an armed robbery in which two people were killed – he's since written a book about his journey and frequently talks about it as part of his advocacy work.

"Now, after years of healing and loving work, I am confronted, yet again, with the cruel reality that society makes people like me keep paying for mistakes far beyond our prison term," he wrote in 2018.

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After his column ran the host of the "DEcarcerated" podcast said he was invited to meetings with Airbnb's Trust and Safety team, along with members of organizations like the ACLU and prison reentry advocates. But he felt like those meetings were not productive, he said.

"Nothing really changed except that they allowed me (back) onto the platform. I want to be clear, like, after when I was denied, I never asked to be back on the platform I was just mad that this was happening and this is an issue," Peterson said.

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Does everyone with a criminal background face a ban from Airbnb?

Both Peterson and Hallam said they're confused by the inconsistency of who gets banned and who doesn't.

Peterson has a friend who has been renting out his house for years on Airbnb and has a prior conviction but has never had an issue with the background check.

Hallam was a host at one point in 2018. The same conviction that got her banned this year would have shown up on a background check then.

Airbnb's website says that if they have a valid first name, last name and date of birth they will run a background check on all guests "10 days before the check-in date of their reservation (or later in the case of bookings within 10 days of check-in)" and all hosts "when the Host logs in after creating a listing, or when a stay or experience is booked – whichever comes first."

The company said it reinstated both Hallam and Peterson's accounts, which both individuals confirmed. Neither has used the site since their bans, and both said they are more concerned about the people this is happening to who don't have ways to amplify their stories.

Hallam said she asked the company: "Can you assure me that you're going to do the same review you did for me to everyone else who I've now found out, has had similar experiences with Airbnb?" She said she did not get an answer.

How to appeal an Airbnb ban

If a user gets an email saying they're banned from Airbnb because of something that appeared on their criminal background check, they have a right to see the report that was generated by Inflection to ensure it's accurate.

The company will typically send a link to make that request, or they can simply respond to the email asking for it.

If something is incorrect on the criminal background report, they'll need to take that up with Inflection. Parent company Checkr has a web page on how to file a dispute.

Once the background report information is confirmed to be accurate, they can file an appeal with Airbnb to get the account reinstated. They can also file an appeal if the information is correct, but they feel it doesn't warrant a ban under Airbnb's policy. More information on the appeals process can be found in Airbnb's help center.

If a customer feels a background check company is not responding adequately to their dispute they can contact a lawyer to help with Fair Credit Reporting Act violations, at no cost.

"The cool thing about this law is that you can hire a lawyer to fix this for you with zero out-of-pocket costs," Cohen said. "The Fair Credit Reporting Act says that any time that a lawyer spends on the case, the lawyer gets to bill to the background check company."

Follow Katie Wedell on Twitter: @KatieWedell and Facebook: facebook.com/ByKatieWedell

This article originally appeared on USA TODAY: Airbnb draws ire over ban on customers with criminal records