In recent years, employment background screening has gone from a costly and time consuming task reserved for selected job applicants to an increasingly automated and technology driven business necessity in a global economy where employers expect fast, accurate, and inexpensive results from screening providers. However, both employers and background screeners are finding with increased efficiency comes increased risks, especially when it comes to the use of unfiltered information going directly to employers from criminal database or inaccurate information obtained by “screen scrapping or automated robotic searches.” This is Trend Number 4 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit http://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php.
New Technology Benefits Background Screening
Thanks to technology and the rise of the Information Age, background screening has gone from a laborious manual endeavor to more efficient automated processes. The many advantages of modern background screening for employers and recruiters include seamless integrations with convenient and paperless Applicant Tracking System (ATS), Human Resource Information System (HRIS), and Applicant Generated Report (AGR) solutions. These advances allow easy management of both pre- and post-hire recruiting including Tracking, Onboarding, Reporting, CRM, and Performance Management. It also cuts down on data entry, decreases error rates, and speeds up the entire process
With the use of technology, most employers and recruiters no longer have to fax orders to a screening firm or manually entering applicant data into their system. Employers tired of having to chase down and manage applicant releases, forward signed releases when an employment or education verification requires it, or signing on to different systems can avoid such hassles now. Getting a signature from an applicant can be as easy as moving a mouse across a computer or laptop screen for an electronic “e-signature.”
New online AGR systems allow job applicants to enter their own information and offer the following benefits for employers and recruiters:
- Paperless online data collections of all information necessary for candidate screening.
- Eliminates error prone manual data entry.
- Eliminates paper based applicant release forms.
- Features “mouse driven” signatures.
- Eliminates concerns about collecting dates of birth or Social Security numbers.
- State-of-the-art security, data protection, and redundancy.
The biggest change in background screening concerns speed. With new technology, employers and recruiters can expect results in a matter of a few days or in some cases only hours or minutes thanks to automation and the proliferation of online databases that store countless consumer records. With the rise of so-called instant background check phone “apps” and web sites, background check results can be returned in a few seconds.
As a result of all of this new and growing technology, background checks can be done faster than ever. However, faster is not always better with background checks.
Instant Internet Background Checks Not Always Accurate
Technological advances such as the Internet, social media, and smart phones have made information found on background checks more available to the average employer and consumer than ever. It seems anyone can run a background check on anybody, anywhere, and at any time these days. However, the white paper, ‘Background Check Mobile Phone Apps and Instant Background Check Web sites: Fast and Easy, But Are They Accurate?,’ found that while smart phone “apps” and Web sites offering instant background checks are cheap, fast, and easy to use, they may not provide entirely accurate information.
With the increased automation of screening, background checks may miss criminal records if employers rely on instant database searches with unreliable results that could give both employers and consumers a false sense of security. Background checks based solely upon databases are subject to both false negatives and false positives and they have substantial issues in terms of timeliness, completeness, and accuracy. Because of the nature of databases, the appearance of a person’s name in a background check does not necessarily indicate that person is a criminal any more than the absence of a name shows that person has a clean record.
In other words, database searches may contain both “false negatives,” where there is no criminal match with the person being checked but that person is a criminal, and “false positives,” where there is a criminal match with the person in the background check but upon further research it is not the same person. Any positive match – called a “hit” – must be verified by reviewing the actual court records from a courthouse.
Since information found on the Internet is not always accurate or authentic, another problem is the use of “screen scraping” by some companies to copy or collect personal information and other data such as such as email addresses, cell numbers, and pictures of Internet users from social-networking sites, résumé sites, and online forums for detailed background reports on individuals.
While the Equal Employment Opportunity Council (EEOC) is rightfully concerned with inaccurate criminal reports, the EEOC needs to identify the source of these inaccuracies. Inaccurate criminal records come primarily from data aggregators that sell data over the Internet directly to businesses. These records are unfiltered by a professional Consumer Reporting Agency (CRA) that has an obligation under the federal Fair Credit Reporting Act (FCRA) to provide accurate data.
The complimentary white paper, ‘Background Check Mobile Phone Apps and Instant Background Check Web sites: Fast and Easy, But Are They Accurate?’ is available at http://www.esrcheck.com/Download/.
Screen Scrapping and Automated Searching
Another use of technology is so called “Screen Scrapping” or similar methods with automated software that can search various courts online. The problem again is accuracy, completeness, and timeliness. Although there are a substantial number of courts that allow online access, there is no guarantee that the records are complete and up to date. There are some counties in the U.S. where the online data is the same data one would get by gong to the courthouse. In that case, however, there is still the issue of obtaining court documents in order to have sufficient detail to determine if the criminal record even applies to the consumer, and if the matter is reportable under all the various complicated state laws that apply.
Only when an online source is the “functional equivalent” of going to a courthouse can the data be considered trustworthy. If such robotic searches are used for counties that do not offer real time data then it is arguable that the background screening firm has not done a screening, but only a “scanning” of available but incomplete date. However, if a background screening firm fails to disclose that the courthouse search is the not the same as going to the court, then such a search can more appropriately be called a “Scam.” It’s important for employers to differentiate between a “Screen,” a “Scan,” and a “Scam.”
The Good, Bad & Ugly of Databases
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 millions of records from all 50 states. These databases appear to offer employers an instant criminal check at a very low price. Although a multi-state records database can be a powerful tool, employers need to understand the limitations and legal exposure associated with using them. If they don’t, employers may find themselves embroiled in litigation. Employers must keep in mind the good, the bad, and the ugly of criminal record databases if they intend to use them:
- The Good: 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.
- The Bad: Despite their value, criminal records databases have serious flaws. Criminal records databases can be incomplete for a number of reasons. First, they do not contain records from all states and jurisdictions. States that do provide records may not provide all state records, 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. In addition, because of name variations, an electronic search of a vendor’s database may not recognize variations in a subject’s name. Finally, 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. As a result, the most recent offenses are the least likely to come up in a database search. Also keep in mind that database checks by private screening firms are NOT FBI records.
- The Ugly: Inaccuracy is not the biggest pitfall of national criminal database searches. They also make employers vulnerable to a number of legal landmines, including how Automated Decision Making with a grading system based upon search results could violate federal EEOC rules and many state laws that prohibit the automatic elimination of a person with a criminal conviction unless the employer can show a business justification. Also, 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. Also, if a background 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.
Criminal database searches, 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 and the application, interview and past employment checking process. To read the full article ‘Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly,’ visit: http://www.esrcheck.com/Articles/Criminal_Databases.php.
Example: Don’t Mess with Texas (Criminal Records Database)
An example of just one of the many problems with criminal databases is found in the ESR News Blog ‘State Audit Reveals Gaps in Criminal Records Database Affect Background Checks in Texas.’ A 2011 state audit in Texas revealed that gaps in the state’s criminal records database may cause criminal background checks used to screen job applicants – including teachers, doctors, nurses and daycare employees – to fail to uncover arrest records. The audit also found that the state’s Department of Public Safety (DPS) Computerized Criminal History System is an unreliable source for complete information and that DPS should improve the timeliness and accuracy of its data.
According to a report in the Fort Worth Star-Telegram, while Texas state law requires courts and prosecutors to submit information to the state within 30 days of receiving it, in 2009 prosecutors and courts failed to submit disposition records on about one of every four arrests, a slight improvement from a 2006 audit. In addition, the audit found that 7.65 percent of offenders admitted to jail, prison, or probation by the Texas Department of Criminal Justice did not have corresponding prosecutor and court records in the DPS system and that county officials could not submit some records because they lacked required arrest incident numbers or state identification numbers. The full story from the Star-Telegram is at: http://www.star-telegram.com/2011/09/29/3406283/database-gaps-hinder-texas-criminal.html.
The problem with gaps in criminal database records hindering background checks in Texas is not new. A 2008 ESR News blog reported on an investigation by the Dallas Morning News done four years earlier concerning inadequacies in the statewide criminal database maintained by the Texas Department of Public Safety. An earlier story from ESR cited the Morning News report that the Texas database was used over 3 million times a year, but only had 69 percent of the complete criminal histories records for 2002. The Morning News revisited the story in August 2008 and found, essentially, that nothing had changed. For 2006, the database still only had 69% of the state’s criminal history. The story noted that only 106 out of Texas’ 254 counties reported electronically, and even then there appeared to be glitches or communication issues with various state law enforcement agencies. Other problems had to do with keeping trained personnel or officials in smaller jurisdictions forgetting to report the status of a case.
To read the ESR News blog ‘Four Years Later, the Texas Statewide Criminal Database is Still Full of Holes,’ visit: http://www.esrcheck.com/wordpress/2008/10/01/four-years-later-the-texas-statewide-criminal-database-is-still-full-of-holes/.
To read the ESR News Blog ‘State Audit Reveals Gaps in Criminal Records Database Affect Background Checks in Texas,’ visit: http://www.esrcheck.com/wordpress/2011/09/29/state-audit-reveals-gaps-in-criminal-records-database-affect-background-checks-in-texas/.
The Solution to Database Mistakes: Follow the Golden (State) Rule
Since there can be mistakes from databases, but the solution is simple: background screening companies should follow a rule in the state of California that requires that any criminal record be verified at the courthouse before being reported to an employer to ensure it is complete, accurate, and up to date at the time the record is reported. This is normally done in California by reconfirming any database information at the courthouse to ensure that it is accurate. That part of the California Civil Code section reads:
1786.28. (b) A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles, collects, assembles, evaluates, reports, transmits, transfers, or communicates items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer’s ability to obtain employment shall in addition maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.
One method that EEOC may consider is a requirement that all criminal data from databases is to be re-verified at the courthouse level prior to being provided to an employer. Under FCRA section 613(a)(1), a CRA has what is generally referred to as a “notice” option. However, in this modern day and age of aggregated criminal records, courthouse verification would be an effective way to prevent the dissemination of inaccurate or outdated criminal records.
While background checks using database searches are useful as secondary tool, a professional background check should include county court level searches carried out by a professional accredited background check company or a licensed private investigator.
The examples listed above underscore common issues for employers performing background checks where searches of criminal databases can be problematic. The best practice is for all possible criminal “hits” on databases is to be reconfirmed at the county court level to insure the information is accurate, complete and up to date. Employers keep this in mind when utilizing criminal databases.
Because compliance with the laws that govern the background screening process can be confusing at best, Employment Screening Resources (ESR) – a nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS®) – has developed the ESR Assured Compliance technology that allows employers to automatically comply with federal and state laws governing employment screening background checks through the company’s online paperless Applicant Generated Report (AGR) system that is constantly updated with required changes in hiring and employment regulations. For more information, visit http://www.esrcheck.com/ESR-Assured-Compliance.php.
With ESR Assured Compliance, the paperless online automated AGR system manages all aspects of federal and state specific notices and disclosures and creates an electronic audit trail of compliance for employers, while also providing applicants with the opportunity to save copies for their records. All federal Fair Credit Reporting Act (FCRA) required elements such as Notice, Disclosure, and Consent are built into the online process and are updated as requirements change. In addition, compliance with state screening laws – such as those regarding using credit reports for employment purposes – is built around AGR “alerts” sent to applicants depending on states where applicants live and will be working.
For a brief overview of the ESR Assured Compliance process, visit: http://www.esrcheck.com/file/ESR_Assured_Compliance_Process_Overview.pdf. To learn more about background checks, visit ESR at http://www.esrcheck.com/ or call ESR toll free at 888-999-4474.
About Employment Screening Resources (ESR):
Founded in 1997 in the San Francisco, CA area, Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR Founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions. ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than two percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit http://www.ESRcheck.com or call toll free 888.999.4474.
About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at firstname.lastname@example.org.