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What It Will Tell

Felony and misdemeanor convictions and pending cases, usually including date and nature of offense, sentencing date, disposition and current status. Searches go back at least seven years. Some states allow longer periods, but because of the lack of a workable national rule, the industry standard is a seven-year search. However, the seven years can include criminal matters that occurred earlier than seven years under certain circumstances. The seven-year period means being free of custody for seven years. In some states with a seven year limit, a matter can be reported if the appellant is expected to earn ascertain 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. 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, the FCRA limits arrests to seven years. 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.

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. 

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 checked.

Limitations/Notes on Using this Information

There are some restrictions on certain information (such as arrests not resulting in convictions, expunged cases or cases were 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 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. For example, in Los Angeles county, the most effective search is done by the court clerk, although court clerks generally search by exact name only.  Some courts charge an access fee.  For New York, there is an additional state imposed fee of $52 for a state provided statewide search. If obtaining New York records, inquire about special New York issues. In the event of a "hit" there can be delays beyond the control of ESR in obtaining the record since record production is controlled by the court clerk in each county. 

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. 

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 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 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.

Limitations on Databases

What It Will Tell

Driving history for three years; verification of driving privilege; and driving record.

Reason You Need This Information

A driver’s license search gives insight into applicant's level of responsibility; determines whether an applicant keeps commitments to appear in court or pay fines; has a drug/alcohol problem; and gives the current license status. "Driving for work" is very broadly defined in most jurisdictions and is not limited to driving positions.

Limitations/Notes on Using this Information

This information can be accessed by an outside agency on an employer's behalf. The alternative is having applicants personally go to the DMV to obtain their own records which is not practical and is subject to fraud. Some state DMV's also have a drivers "pull" program for firms that would like updates. Some states require special forms and return of data.  Personal data about an applicant is not provided.

What It will Tell

Provides names and addresses associated with the applicant's social security number and may indicate any fraudulent use. May verify other applicant information.

Reason You Need This Information

A SSN check helps verify the applicants are is who they say they are. It is critical to ensure employer is not the victim of a fraudulent application by someone with something to hide.

Limitations/Notes on Using this Information

Where employer does not have a sound business reason to obtain a business credit report, the social security check gives information to help confirm identity and to uncover fraud.  However, a social security trace is NOT an official review of government records.  These records are assembled and maintained by private sources. 

What It Will Tell

Credit history and public records such as judgments, liens and bankruptcies. May include previous employers, addresses and other names used.

Reason You Need This Information

A credit report helps determine whether an employee is suitable for a position that involves handling cash or exercising financial discretion as well as a possible way to gauge trustworthiness and reliability.

Limitations/Notes on Using this Information

A credit report should only be requested when it is specifically relevant to a job function and the employer has appropriate policies and procedures in place to ensure that the use of credit reports are relevant and fair.  Of all of the screening tools available a credit report is probably the most sensitive so caution should be utilized. In California, Oklahoma and Minnesota, applicants have additional rights asking them to check a box to obtain their credit reports as well as their consumer report.  There are strict rules concerning who may obtain credit reports  ESR conducts an on-site inspection of all employers who request credit reports to ensure that only established businesses with a permissible business purpose (employment) will receive credit reports.  Certain employers may not be eligible to receive credit reports.  See ESR article on credit reports »»

What It Will Tell

Basic verification includes dates of employment, job title; and reason for leaving. Some employers will verify salary. Usually obtained from HR, Personnel or Payroll. Some employers have the information recorded on a 900 service.

Reason You Need This Information

This information confirms your applicant's resume; verifies his/her job history; helps eliminate any unexplained gaps in employment which ensures that appropriate jurisdictions have been checked for criminal records; and helps an employer demonstrate "due diligence" in their hiring practices.

Limitations/Notes on Using This Information

Employers are often hesitant to give recommendations and may limit prior employment checks to the basic information. This service can be limited if not allowed to contact current employer, if past employer is out of business or cannot be located, or if employee was working through an agency. There can be third party fees associated with employment verification, such as fees imposed by 900 services.

What It Will Tell

This is a more in-depth reference check that seeks to identify job duties, performance, salary, strengths and weaknesses, eligibility for rehire, and other detailed information. (These are referred to an Investigative Consumer Reports and are not available as a service to firms in the state of Nevada). 

Reason You Need This Information

This information allows an employer to have a realistic assessment of a candidate from former employers. It promotes a better fit, confirms the hiring opinion, and protects the expensive hiring investment.

Limitations/Notes on Using This Information

Although most employers would like references, few will give them due to concerns over legal liability. However, an employer should still attempt to obtain references in order to demonstrate Due Diligence.

What It Will Tell

Contact personal references to ascertain additional information about your applicant concerning fitness for the job in question.

Reason You Need This Information

Personal references can provide valuable information as to a person's character as it relates to the job opening.

Limitations/Notes on Using This Information

A personal reference check should also inquire about the applicant's relationship to the reference and how long they have known each other in order to evaluate the information. We can also contact "developed" references for a better picture.

What It Will Tell

Verifies the type of license; whether it is currently valid, dates issued, state; and licensing authority.  Education checks will verify dates of attendance and degrees.  ESR can also provide special background services, such as compliance with the Pilot Record improvement Act (PRIA).

Reason You Need This Information

This search confirms whether an applicant has the required credentials licenses or education claimed. There is a high rate of fraudulent education claims 

Limitations/Notes on Using This Information

As with all pre-employment screening, it must be a valid predictor of job performance.  If a licensing agency or school cannot verify data, the applicant should be given an opportunity to explain before assuming the applicant has lied since there can be an explanation for a discrepancy.  Employers need to be aware of "diploma mills" that grant worthless degrees

What It Will Tell

Date of filing, case type, case number or file record, jurisdiction and; if available, identity of parties involved.

Reason You Need This Information

Limitations/Notes on Using This Information

What it will Tell

Information about Worker's Compensation claims and previous injuries.

Reason You need this Information

This information allows the employer to conduct post-job offer reviews in compliance with strict standards of the Americans with Disabilities Act (ADA).

Limitations/Notes on Using this Information

Federal and state laws regulate the use of these records. You should have policies and procedures in place before requesting or utilizing these records.  The critical consideration is that an applicant may not be discriminated against on the basis of a lawful exercise of a right to file a claim nor be denied employment if they are able to perform the essential job function with or without reasonable accommodations and are not a health or safety threat to themselves or others.