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May 2010 Vol. 10, No. 5
Employers that rely on criminal records databases to conduct background checks on potential employees also rely on the accuracy of the information in those databases. Now a federal bill introduced in the House would help to strengthen the accuracy of the Federal Bureau of Investigation's (FBI) criminal records database by requiring the U.S. Attorney General's Office to verify that crime data contained in the FBI's database is up to date.
As reported on NextGov.com, the Fairness and Accuracy in Employment Background Checks Act of 2010 (H.R.5300) - which would provide safeguards with respect to the FBI criminal background checks prepared for employment purposes - would require the attorney general to find out from court offices, even those in state and local jurisdictions, the outcome of arrests when an employer requests a background check.
In addition, the attorney general would update that record in the FBI's National Crime Information Center (NCIC) database, and would have 10 days to update the record after discovering an arrest was dismissed in court before responding to the employer's request. According to NextGov.com, employers consult the FBI's NCIC database - which is a computerized index of criminal justice information available to Federal, state, and local law enforcement and other criminal justice
agencies 24 hours a day, 365 days a year - to conduct background checks on individuals applying for jobs in law enforcement and security, and for jobs working with vulnerable people such as children and the elderly.
The bill H.R.5300 was introduced in response to "The Attorney General's Report on Criminal History Background Checks" in 2006 that showed nearly 50 percent of criminal records maintained in the NCIC database failed to note court decisions to dismiss arrests, NextGov.com reported. To help avoid inaccurate or incomplete employment background checks, the legislation would give job applicants the opportunity to challenge the accuracy and completeness of background check reports done through the FBI records database. If criminal records are challenged, the attorney general would have 30 days to investigate,
make changes, and report those changes to the applicant and the employer.
Some background check experts agree the Fairness and Accuracy in Employment Background Checks Act of 2010may help fill the gaps in the FBI's criminal database. "Although the NCIC data is the closet thing that exists to a national criminal database, it is not nearly as complete as portrayed in the movies," stated Les Rosen, President of Employment Screening Resources (ESR), a nationwide employment screening company. "Many records of crime do not make it into the system because of the chain of events that must happen in multiple jurisdictions in order for a crime to appear in NCIC."
According to Rosen, author of The Safe Hiring Manual: How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace, employers cannot even access the NCIC unless they are specifically authorized to by law."There is simply no national computer database of all criminal records available to private employers," says Rosen. A 2005 report - "The National Crime Information Center: A Review and Evaluation" - sponsored by the National Association of Professional Background Screeners (NAPBS), of which Rosen is a past co-chair, reviewed the NCIC to evaluate its effectiveness in maintaining accurate
and complete criminal history records. Among the findings of the NAPBS
Many states did not report information concerning dispositions, declinations to prosecute, failure to charge after fingerprinting, and expungements. nconsistency in the reporting requirements and criminal codes in various states impacted the completeness and accuracy of the records. There were significant time lapses between when information was transmitted to the state repository and actual entry into the criminal history records.
The format and terminology used by the various states created problems of interpretation for individuals in other states using the information. For more information on the FBI's NCIC criminal records database - and the reasons why the information contained in that database is sometimes not always entirely accurate.
Following two recent incidents concerning census workers endangering U.S. citizens - including an attack of a disabled young woman allegedly by a census taker in Indiana and a registered sex offender using an alias to get a job as a census taker in New Jersey - the U.S. Census Bureau is adopting stricter rules for the background screening of census workers for the once-in-a-decade 2010 U.S. Census.
According to a story in the Washington Post, the bureau's director said that the stricter rules for background screening means applicants for the job of census takers whose name, age, gender and Social Security number do not match background screening records will undergo more inquiries instead of being sent for FBI fingerprint checks. As part of the background screening process, all census workers are fingerprinted on their first day of training and the fingerprint card(s) are submitted to FBI for processing.
Other changes in background screening will include not hiring applicants whose fingerprints are not legible until their identities and backgrounds can be confirmed and swifter intervention when there is "evidence of criminality" by a census worker, according to the Post. The changes in background screening for census takers come after a New Jersey woman she was visited by a census worker who asked for the names and birth dates of everyone in the family. She later recognized the man's photograph under a different name than the one he had given her on a sex-offender registry site. The Post reported that Census officials said the man passed a name check during background screening but failed a fingerprint check and was fired after he visited the woman's home. In Indiana, a census worker who passed the background screening process was charged in the attack of a disabled woman after allegedly returning to her house after making a visit as a census taker. According to the 'Background Check FAQ' page of the U.S. Census website, the Census Bureau takes public trust seriously and works to ensure that temporary workers undergo the most thorough and accurate background screening possible. The Census Hiring and Employment Check (CHEC) Branch of the Administrative and Management Systems Division (AMSD) performs background screening for all applicants and employees. Background screening of the approximately 635,000 census takers includes a name check against the Federal Bureau of Investigation's (FBI) Name Index and a search of the FBI's National Crime Information Center (NCIC) database of individuals that have been arrested and fingerprinted to see if it contains a criminal history record file that matches an applicant's name, date of birth, and social security number. For more information on background screening, including new legislature that would strengthen the accuracy of background screening using FBI criminal databases and how these databases can sometimes have inaccurate or incomplete information, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.
IAfter the University of Virginia's president recently announced that the school would perform background checks on students in the wake of the tragic murder of a femalestudent - allegedly at that hands of a fellow student - lawmakers in neighboring Maryland may soon require that universities in that state conduct background checks on students.According to a report on WJLA ABC 7 News in Arlington, Virginia, the suspect in the University of Virginia killing - a male lacrosse player the same age as the victim, 22, who was also a lacrosse player - was arrested in 2008 after a drunken altercation with a police officer. But the accused killer failed to tell university officials about the arrest.
Presently, according to the WJLA report, many universities - like the University of Maryland - merely ask students if they have a criminal history. If students admit to a crime, school officials say that they are screened further. Otherwise, officials at the university may not know if students have previous convictions.
Upon hearing that Maryland's state lawmakers may require state universities to conduct background checks on students, some interviewed in the article agreed that background checks for college students are a good idea. "If they have a history you can say maybe there's a pattern..." one person said, "and they won't do it again."
WJLA reports officials at Frostburg State University in Glen Burnie, Maryland were considering whether the school should seek criminal information from applicants before a recent off-campus shooting during which one student at the school died and another was injured. However, the alleged shooter in that case did not have a criminal history.
WJLA also reports that it has not heard of any current plans at the University of Maryland to require background checks on students.
ESR Articles (click for more info)
The FCRA in 4 Easy Steps
Find out how to be in compliance with the FCRA
Criminal Records and Employment Applications
What questions should employers be asking?
10 Safe Hiring Tools
These tools don’t cost anything and promote a safe and profitable workplace
What occurs when Due Diligence is not performed
Please feel free to contact Jared Callahan at ESR at 415-898-0044 or email@example.com if you have any questions or comments about the matters in this newsletter. Please note that ESR's statements about any legal matters are not given or intended as legal advice.
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