Criminal Background Checks
Criminal record searches show felony and misdemeanor convictions and pending cases, usually including date and nature of offense, sentencing date, disposition and current status. ESR offers six basic types of criminal searches:
- County Court Criminal Record Search
- State Level Criminal Search
- Federal Criminal Records
- Sex Offender Registry Search
- Multi-State/Multi-Jurisdiction Criminal Records Database Search
- International Criminal Search
Searches go back at least seven years. Some states allow longer periods. However, even where states only go back seven years, cases can be reported that are older if the period of custody extended into the seven year window. In some states with a seven year limit, a matter can be still reported if the applicant is expected to earn a certain salary level. A crime that occurred more than seven years ago may be reportable even in a seven-year state if any custody time was served within the past seven years. In at least two states with seven year limits, Colorado and Texas, there is widespread industry agreement that the seven year rules are pre-empted by the federal Fair Credit Reporting Act (FCRA).
ESR does not report arrests NOT resulting in a conviction or dismissed charges in order to assist employers in complying with federal and state discrimination laws unless the employer specifically requests such data or it is permitted by state law. However, in some circumstances, the FCRA limits how far back arrest records can be reported. There is no FCRA limitation on convictions, although many states impose a variation of a seven-year limitation or other rules. Those are summarized in ESR's 50 state legal guide which is available to clients.
It is critical to search both for felonies and misdemeanors to the extent possible in state court since many serious violations can be classified as misdemeanors. However, not all courts have misdemeanors available. Searches are performed at the central courthouse or by use of the same resources that are available at the central courthouse. Not all jurisdictions provide all misdemeanors. Misdemeanors or minor offenses filed in outlying courthouses or in Justice of the Peace courts may not always appear. In addition, some courts charge an access fees for records. Contact ESR for more information.
ESR can also search federal court records. The federal court system is an entirely separate court system from county courts. Federal courts are searched at the district court level. Employers should be aware that positive identification can be difficult with federal searches due to lack of identifiers in federal court files.
If a criminal record is located, ESR goes through extensive procedures to ensure that the information is complete, accurate, and up to date, reportable under appropriate laws, and applies to your applicant. Only primary source, on-site courthouse searches, or government maintained courthouse equivalent sources are used in report preparation. An ESR report will include information on the Court, identifiers to show the relationship between the criminal matter and a consumer, and pertinent details about the offense.
However, an employer must make certain they understand all of the rules and limitations about the fair, appropriate, and non-discriminatory use of criminal records. A 2012 Guidance from the Equal Employment Opportunity Commission (EEOC) has laid out in detail the process employers should utilize in order to make sure that criminal records are used fairly. ESR makes extensive material available to clients on the fair and proper use of criminal records. Under no circumstances can an employer automatically reject applicant on the basis of a criminal record.
Reason You Need This Information
It is critical information to protect your business and employee, helps protect employers from negligent hiring exposure, and helps reduce the threat of workplace violence, theft, disruption and other problems. Failure to honestly disclose a prior criminal conviction can also be the basis not to hire. For the maximum protection, all jurisdictions where an applicant has lived, worked, or studied in the past seven years should be a part of the background check.
Limitations/Notes on Using this Information
There are some restrictions on certain information (such as arrests not resulting in convictions, expunged cases or cases where there is a form of delayed adjudication) or certain minor offenses. Employment cannot be automatically denied based upon a criminal record, but employers must demonstrate a sound business reason. Under federal and state EEOC rules, an employer must consider the nature and gravity of the offense, the nature of the job, and the age of the offense. Numerous states have specific rules that affect the use of criminal background records for employment decisions.
Contrary to popular perception, criminal records are not available by computer nationwide. The FBI database (NCIC) is restricted to employers who have specific governmental authorization, and even that search is subject to various errors. For private employers, the search must be conducted by examining the public records at each individual county courthouse that is potentially relevant. There are over 3,200 courthouses in the US. As with any event that depends upon human accuracy, there is always the possibility of error. In some courts, the court clerk conducts the search and the accuracy depends upon the court clerk. Some courts charge an access fee and ESR provides a current schedule of these fees. For New York, there is an additional state imposed fee of $65 (subject to change) for a state provided statewide search. If obtaining New York records, inquire about special New York issues in using criminal records.
If there is a possible criminal record, it is critical to carefully review the underlying court documents to locate identifying information to determine if the criminal record in fact belongs to the subject of the search. The criminal record must also be examined to determine the details of the offense and whether the criminal matter is reportable. In the event of a "hit" there may be delays beyond the control of ESR in obtaining the record since record production is controlled by the court clerk in each county.
Sometimes an applicant may have a previous name or an "alias" name. For example, this can occur if an applicant has married and there has been a name change. A search for a criminal record does not include the previous name unless specifically requested since court indexes are maintained by the name used for the criminal filling. A search under a previous or different name is, in fact, a separate search.
For all of the above reasons, criminal record searches are not an exact science and errors are always possible. There can be false negatives (i.e. a person is cleared who in fact has a criminal record) or false positive (i.e. a person is misidentified or is the subject of criminal identity theft). However, when used in conjunction with other safe hiring tools, criminal records background checks, such as employment checks and social security traces, are extremely effective in protecting the workplace against hiring individuals who are dangerous, unfit, or unqualified for a particular job.
For more information, or to order this service, contact Employment Screening Resources (ESR) at Contact Us
Criminal Background Check services Northern California, Novato, San Francisco, San Jose. California Criminal Record Check. Employment Screening Resources® (ESR) is a nationwide Criminal Background Check Company.