Is Airbnb at Fault for Not Performing Proper Background Checks in the Lapayowker Case?

News organizations worldwide are reporting that Leslie Lapayowker, a former Airbnb "super host" and guest at Carlos Del Olmo's residence through Airbnb, was a victim of sexual assault from Del Olmo during her stay. Lapayowker has filed a lawsuit against Airbnb for negligence in reporting Del Olmo's previous criminal history.

Lapayowker alleges that Del Olmo would make suggestive comments towards her, pound on her windshield while she was in the vehicle, and scream at his son loud enough for her to hear through the attached studio she was renting for the month. She left the studio after three nights but returned to pick up a few items that she had left. Del Olmo let her inside, trapped her in the room, masturbated in front of her, ejaculated into a trash can, then as he let her leave stated: "Don't forget to leave me a positive review on Airbnb."

Since Lapayowker has reported the incident to the police and Airbnb, Airbnb removed Del Olmo from their website. The attorney representing Ms. Lapayowker discovered through Del Olmo's criminal records that he had been arrested and charged in 2013 for the battery. He was accused of pulling his former girlfriend by her hair, dragging her from the back to the front seat of his car while his child was in the vehicle. Del Olmo was never convicted but was referred to as an anger management program. Airbnb stated that they had done a background check on Del Olmo, but Lapayowker is suing for not disclosing the arrest to her and allowing him to host on the website.

Two questions remain: Was their background check provider thorough enough to report back the domestic violence arrest? If so, why did Airbnb still approve Del Olmo?

If the provider did not report back the arrest in the background check results, it would not be a surprise. We have discussed in our blog several times about how  there are many online background check providers out there, but they may not have access to legal databases.  Airbnb even states on their help page that their background checks may not be thorough or accurate: "Due to the way certain databases are maintained, there may be gaps in the coverage provided by public records searches, and the online databases may be only updated periodically by local governments which we do not control or direct. Results of these database checks may not reveal or include recent criminal record activity." Regardless, companies are placing themselves at a liability by relying on background providers that may not have full, accurate, licensed access to background information. In order to access licensed proprietary databases, which can include the most updated criminal records and legal information, you need to be a professional with the proper legal licensing, such as a licensed private investigator.

Even if the provider did not accurately report the arrest, the fault would still lie with Airbnb for not crosschecking and verifying the information. Companies are catching on to this by hiring licensed private investigators to performed verified background check services  to protect their liability.

According to Airbnb's help page, in the US they check "certain databases of public state and county criminal records, as well as state and national sex offender registries for criminal convictions and sex offender registrations." They also check the OFAC list for terrorist designations. Airbnb has not commented on whether they knew about Del Olmo's previous arrest, citing the Fair Credit Reporting Act, which prohibits disclosure of background check results, however, they did confirm that Del Olmo showed no prior convictions. Airbnb reports that they run background checks on at least the user's first and last name as well as the date of birth. However, what they state on their help page brings more concern on their level of due diligence: "We do not have these identifiers [full name and date of birth] for all hosts and guests and therefore cannot guarantee that we have conducted a check on every host or guest." Airbnb is missing vital information for background checks when users apply to be hosts or guests on their website. Airbnb should have a consistent signup process that disallows incomplete information in an application.

It has not yet been confirmed whether the provider did not accurately report the arrest or if Airbnb was aware of the previous arrest and neglected to deny Del Olmo as a host. Regardless, Airbnb has a vast peer-to-peer travel hosting network with no face-to-face time with their hosts. It is imperative that they get their background check information from verified services from licensed private investigators and follow through on intelligence they receive to keep their website service safe for the public. Otherwise, Airbnb will be facing more lawsuits and put the company's future in jeopardy.