The Dangers of Using Criminal Databases for Employment Screening
Attorney Lester S. Rosen breaks down the Good, the Bad, and the Ugly when using criminal databases for employment screening.
The key to limiting employee problems is to avoid hiring problem employees by conducting pre-employment screening. Advances in technology have led to a new pre-employment screening option for employers and security directors: the "national" criminal record database. Vendors of such databases typically claim to have compiled more than 120 million records from 40 or more states. These databases appear to offer security directors an instant criminal check at a very low price.
Although a multi-state records database can be a powerful tool, security directors need to understand the limitations and legal exposure associated with using them. If they don't, employers may find themselves embroiled in litigation.
Nothing Like the Real Thing
These so-called national criminal databases are not true warehouses of the nation's criminal records. The data in them does not come from the National Crime Information Center (NCIC), the closest thing to a true national database of criminal justice and justice-related records maintained by the FBI. It is illegal for private companies to obtain criminal information from the NCIC without government authorization.
Since most private employers cannot access the NCIC, private so-called national criminal databases do offer an alternative that security directors can consider in addition to their other screening tools. But they must keep in mind the good, the bad and the ugly of these systems if they intend to use them.
Criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level. A traditional criminal search is conducted at individual courthouses that may be relevant to the applicant's history. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
The data comes from a variety of sources including state court records and repositories, correctional records, and county courts that make data available. By casting a much wider net than a county-level search, a database may pick up information that would otherwise be missed. The firms that sell database information can show test names of subjects that were cleared by a traditional county search, but for whom criminal records were found in other jurisdictions using a search of their database.
These databases are readily available to security directors through Web sites and pre-employment background firms. In fact, it could be argued that failure to use such a database demonstrates a failure to exercise due diligence, given the widespread availability and low price. If a firm does a traditional court search but misses a relevant criminal record from another jurisdiction that a database search would have picked up, the employer may have some explaining to do in a lawsuit.
Despite their value, criminal records databases have serious flaws. An April 11, 2004 article by the Chicago Tribune's Greg Burns discussed a test of an undisclosed online database service by a criminology professor at the University of Maryland. According to the article, the professor obtained the criminal records of 120 parolees in Virginia and submitted their names to a popular online background check company. Burns wrote that 60 names came back showing no criminal record, and many other reports were so jumbled that the offenses were tough to pick out. These types of errors may result from a number of causes, including incomplete records, name variations and untimely information.
Incomplete Records. Criminal records databases can be incomplete for a number of reasons. First, they do not contain records from all states and jurisdictions. This is why I call them multi-state instead of national databases. States that do provide records may not provide all state records. For example, not all court systems make their records available electronically, and those that do may not provide records from all courts.
Second, records that are available may be incomplete or lack sufficient detail about the offense or the subject. And third, some databases contain only felonies or offenses in which a state corrections unit was involved.
The result is a crazy patchwork of data from various sources, with widely different reliability and level of detail.
Name Variation. An electronic search of a vendor's database may not recognize variations in a subject's name. An applicant may have been arrested under a different first name or some variation of first and middle name. A female applicant may have a record under a previous last name.
Some database vendors have attempted to resolve this problem with a wild-card first name search. With this feature, the user would enter Rob* instead of Robert, so any variations of Rob will come up. However, there are many name variations that still may not be recognized. A database may run into confusion searching for applicants who have a different naming convention, such as a combination of mother's and father's surnames.
Finally, given the size of the American population, it's possible you will find two or more people with the same name who also share other identifiers.
Untimely Information. The records in a vendor's database may be stale or may not go back far enough. Most vendors update these records monthly at best. Even after a vendor receives new data, there can be lag time before that data is uploaded into the database. As a result, the most recent offenses are the least likely to come up in a database search. Computerized record-keeping may also not go back far enough in some jurisdictions to provide all of the relevant records an employer needs.
Inaccuracy is not the biggest pitfall of national criminal database searches. They also make you vulnerable to a number of legal landmines.
Automated Decision Making and the EEOC. Some firms offering database services provide security directors with a grading system based upon search results. For example, a stoplight may appear at the end of the search, and if it shows green, it means cleared to hire, red means do not hire, and yellow means caution. The problem is, this could violate Equal Employment Opportunity law. Federal EEOC rules and many state laws prohibit the automatic elimination of a person with a criminal conviction unless the employer can show a business justification. This means each potential match should be reviewed individually.
Laws on Use of Records. When a search turns up criminal records for an applicant, the security director may not legally be able to consider them.
Laws in several states regulate the records an employer can and cannot consider or obtain. Using a record of an arrest not resulting in a conviction may violate state or federal regulations, as may using records of a conviction that has since been set aside by some judicial proceeding, such as an expungement. If the security department conducts employment screening in-house, and the employer acts on the results without additional research, an applicant could potentially sue.
Some employers conduct in-house pre-employment screening investigations to avoid the requirements imposed by the Fair Credit Reporting Act, the federal law that regulates screening on the federal level. However, an employer who directly accesses a private database (as opposed to an official government Web site where anyone can access public records), may trip the FCRA requirements, because the employer is accessing information assembled by a third party that may bear upon an individual's character, general reputation, personal characteristics or mode of living as defined by the FCRA.
If the security director accesses the database directly, a best practice would be to confirm any "hit" at the courthouse by obtaining copies of the criminal record. If a screening firm is used and locates a criminal record using a criminal records database, a security director should make certain that the screening firm complies with the provisions of FCRA section 613 in order to protect an applicant from the possibility that an incomplete, inaccurate, legally impermissible or misidentified record will be used against them. The background firm has two avenues:
- To maintain strict procedures designed to ensure that the record found in the database is current. This normally involves going to the courthouse and reviewing a current copy of the court file.
- To notify the consumer that public record information is being reported and provide the name and address of the party requesting the information. Note that some states do not permit this procedure.
Security directors need to understand the exact nature and limitations of the data they are accessing. Private database searches can be very useful because of the volume and scope of data available instantly at a reasonable price. However, they are not as accurate as county-level searches. A database search can be described as a mile wide but an inch deep, where a county-level search is a mile deep but an inch wide.
A security director should not develop a false sense of security, because there are situations where a person with a serous criminal record will not show up.
Multi-state databases, although a valuable tool, represent a research or secondary tool only. They can act as good lead generators to tell a researcher where else to look. A database should supplement and not replace other safe hiring tools, such as on-site court searches of relevant counties, and the application, interview and past employment checking process.
Lester S. Rosen is an Attorney at Law and the Founder and CEO of Employment Screening Resources (ESR) – http://www.ESRcheck.com – a nationwide background check company located in California and accredited by The National Association of Professional Background Screeners (NAPBS). ESR was rated as the top screening firm in the U.S. in the first independent industry study. Mr. Rosen is the author of 'The Safe Hiring Manual - The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace' (Facts on Demand Press), the first comprehensive book on employment screening, and is a frequent speaker on employment screening issues.