A background check tool currently touted to employers as a “national criminal database” search from data aggregators who advertise access to a nationwide database full of millions of criminal records from all states can create an impression that employers are gaining access to all of the nation’s criminal records in one search. However, nothing could be further from the truth, and an emerging trend has employers realizing “national” databases may not contain accurate or complete information and are only a research tool that should never be substituted for a real “hands on” county courthouse search for criminal records. This is Trend Number 8 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.
When the screening industry has been criticized for inaccurate records, often times it is because of database results where a screening firm did not verify the information was complete and up to date at the time of reporting. Employers that use these databases must proceed with caution. Just because a person’s name appears in one of these databases it does not mean the subject is a criminal. On the other hand, if a person’s name does not appear, this likewise should not be taken as conclusive that the person is not a criminal. In other words, these databases can result in “false negatives” or “false positives,” and an over-reliance can cause employers to develop a false sense of security. While database searches are of value because they cover a much larger geographical area than traditional county-level searches by casting a much wider net, the best overall use of these databases is as a secondary or supplemental research tool – or “lead generator” – which tells a professional screener where else to look for criminal records.
The information compiled in these “national” databases typically comes from a number of various state repositories, sexual offender registries, correctional, courts, and any number of other county agencies that are willing to make their data public or to sell data to private database brokers that accumulate large “data dumps” of information. The limitations of searching private databases are the inherent issues of completeness, name variations, timeliness, and legal compliance. The various databases that data aggregators collect may not be the equivalent of a true all-encompassing multi-state database:
- National criminal databases may not contain complete records from all jurisdictions since not all state court record systems contain updated records from all counties.
- National criminal databases may report records that may be incomplete or lack sufficient detail about the offense or the subject.
- National criminal databases may contain only felonies or contain only offenses where a state corrections unit is involved.
- National criminal databases may not carry subsequent information or other matter that could render the results not reportable, or result in a state law violation concerning criminal records use.
- National criminal databases may contain records from some states where a date of birth (DOB) is not in the court records made public. Since databases match records by date of birth, searching when no DOB exists is of little value since no “hits” will be reported.
When there is a “hit” – i.e. a criminal record found – an employer must be concerned about legal compliance. If an employer uses a commercial database via the Internet, the employer must have an understanding of the proper use of criminal records in that state. If the employer acts on face value results without any additional due diligence research, potentially the applicant could sue the employer if the record was not about them. If a screening firm locates a criminal hit, then the screening firm has an obligation under the federal Fair Credit Reporting Act (FCRA) Section 613 (a)(2) to send researchers to the court to pull the actual court records. This section requires that a background-screening firm must:
- “…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.”
FCRA section 613(a)(1) provides an alternative procedure. Instead of going to the courthouse, a Consumer Reporting Agency (CRA) can notify the consumer that public record information is being reported by the consumer reporting agency and give name and address of the requester. However, some states, such as California, arguably do not permit this alternative procedure. This is a potential compliance issue for employers who operate in states that do not allow the “notification” procedure to be used instead of the “strict procedure” method of double-checking at the courthouse.
FCRA section 607(b) also applies under the 613 letter option, so even if a CRA uses the letter option, there is still an obligation under FCRA section 607(b) to use “reasonable procedures to assure maximum possible accuracy.” That means that so-called letter option is not open ended and data sellers still have a general accuracy obligation. FCRA Section 607(b) sets forth in no uncertain terms the duty of a CRA to be accurate. The section reads:
- (b) Accuracy of report. Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
That section means that the accuracy requirement applies to both the information reported and the duty to ensure it is being reported about the right person. Many consumer advocates and CRAs believe that when it comes to criminal records for background checks, the letter option should be repealed from the FCRA.
The current state of “national criminal databases” is a crazy quilt patchwork of data from various sources and lack of reliability. These databases are more accurately described as “multi-jurisdiction databases.” A summary of issues with private multi-jurisdiction database searches are as follows:
- Multi-jurisdiction database searches are NOT official FBI database searches. FBI records are only available to certain employers or industries where Congress or a state has granted access. Searches offered by background firms are drawn from government data that is commercially available or has been made public.
- Multi-jurisdiction and statewide database searches are a research tool only and are not a substitute for a hands-on search at the county level under any circumstances (or the functional equivalent of a county level search). The best use is to indicate additional places to search in case a record is found in a jurisdiction that was not searched at the county court level.
- In addition, not all states have a database that is available to employers. In some instances, the databases that are available have limited information. Therefore, the value of these searches may be very limited in some states. That means searches in those states should be conducted by a single state search in order to locate all possible names. An employer should carefully review what information is available in their state and not merely depend upon a database search.
- Databases in each state are compiled from a number of sources. There are a number of reasons that database information may not be accurate or complete. Because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is criminal any more than the absence of a name shows he/she is not a criminal. Any positive match MUST be verified by reviewing the actual court records. Any lack of a match is not the same as a person being “cleared.” However, a database is a valuable tool in helping employers cover a wider area and know where to search for more information.
- There are some states that make official state police records or records directly from the court available. However, even these databases have potential drawbacks. The information may not be reportable under state or federal law for various reasons. Information from these sources should be reviewed by a qualified background checking professional.
- The search is based upon matching last name, the date of birth, and the first three letters of the first name in order to eliminate computer matches that are not applicable. Note: In some states, there is no or limited date of birth information. The database description will indicate where the records do not contain a date of birth, which means a search of that state will have little or no value.
- All possible “hits” should be reconfirmed at the county court level to insure that the information is accurate, complete, and up to date at the time it is reported, per FCRA Section 613. Also keep in mind that a criminal record should not be used to automatically disqualify an applicant without taking into account the Equal Employment Opportunity Commission (EEOC) rules as to what is a job-related criminal offense.
Employers also have to realize if they are getting a real “screening” with a background check or if they are getting a “scanning” or a “scamming.” The only way that remote computer access represents a best practice is if the information being accessed is the same as going to the court house. If it is not the functional equivalent, then an employer is not getting a real background check. At best, they are getting a “scan” of what information may be available, but it is not complete or up to date. A “scam” is where a background screening firm sells such remote access as the real thing when in fact it is not. Employers selecting a background firm that advertises quick turnaround time by means of electronic courthouse connecting need to make sure they are getting a screen, and not a scan or a scam.
As technology advances, new ways have been found to access court records. Background firms are able to electronically connect to a number of state and county databases through a variety of means. Automated processes with built in intelligence call permit screening firms to access publically available material with automated processes. Some companies have developed “screen scraping” techniques where court information may be gleaned from court web sites. Although this approach sounds good on paper, there are many practical pitfalls for the unwary. Since the key is always accuracy, the critical part is to ensure that the information obtained is the “functional equivalent” of going to the courthouse and accessing a public computer terminal or other means of locating names of defendants.
If employers and background firms use this technology to search records in thousands of counties that in fact do not have data that is complete and up to date, then there is a great deal of risk. Unless a background firm performs proper due diligence so the remote computer search renders the same detail as going to the courthouse, the employer may otherwise find they are not getting the protections they thought they were receiving.
Criminal record vendors and background check firms should make clear, and employers need to understand, the exact nature and limitations of databases. These private database searches are ancillary and can be very useful, but proceed with caution. In other words, it cannot be assumed that a search of a proprietary criminal database by itself will show if a person is or is not a criminal, but these databases are outstanding secondary or supplemental tools with which to do a much wider search.
Employment Screening Resources (ESR) – ‘The Background Check Authority’ – is a nationwide background check firm located in the San Francisco, California-area accredited by the National Association of Professional Background Screeners (NAPBS). For more information about ESR, visit http://www.esrcheck.com/ or call toll free 888.999.4474. The 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ is at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.
More information about these trends is available in the updated 2nd Edition of “The Safe Hiring Manual” by ESR Founder and CEO Attorney Lester Rosen. For more information, visit http://www.esrcheck.com/SafeHiringManual.php.
About Employment Screening Resources (ESR):
Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more 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. To subscribe to the ESR News Blog Feed, visit http://www.esrcheck.com/wordpress/feed/. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.