Written By ESR News Blog Editor Thomas Ahearn
On July 23, 2018, the National Association of Professional Background Screeners (NAPBS) – a non-profit trade group representing companies offering background screening services – filed a lawsuit against a clerk in the Bentonville Division of the District Court of Benton County in Arkansas for allegedly refusing “to provide background screening firms access to records from her court,” according to a report from Arkansas Online.
The lawsuit filed by the NAPBS claims Jennifer Jones used her official position as clerk to impede the background screening process by relying “on a gross misinterpretation” of the Arkansas State Supreme Court Administrative Order 19 and requiring those people seeking individual court records to pay $5,000, complete a compiled records license agreement, and obtain a compiled records license.
Arkansas Online reports the lawsuit filed in Pulaski County Circuit Court states Order 19 and compiled records license should be used only for obtaining electronic data in bulk extracts for a large number of individuals which makes it “impossible” for background screening firms that seek individual court records to comply with requirements for obtaining a license from the Arkansas Administrative Office of the Courts.
The lawsuit states requests for access to court records by background screening firms are governed by the Arkansas Freedom of Information Act, seeks a preliminary and permanent injunction prohibiting Jones from applying Order 19 in a manner that violates NAPBS member rights under the Act, and wants the court to declare that NAPBS members have a right to access the records, Arkansas Online reports.
This is not the first time access to court records for background screening firms has been impeded. In March 2012, San Luis Obispo Superior Court in California took several steps to impede criminal record searches for background checks in the county by putting their public record access terminals under lock and key and making them off limits to public record researchers and private background screening firms.
County court officials who feel compelled to impede the background screening process “are only shooting themselves in the foot,” according to Attorney Lester Rosen, founder and Chief Executive Officer (CEO) of background check firm Employment Screening Resources® (ESR) and the author of “The Safe Hiring Manual,” the first comprehensive guide to employment screening background checks.
“When counties restrict the access to court records, several things happen. First, employers and job applicants are immediately penalized because background checks take much longer. Any delay in a background screening firm’s ability to complete reports in a timely manner works to the determent of job applicants and employers, who both want to have fast access to criminal records,” explained Rosen.
“Second, criminals are arguably the primary beneficiaries since they have a better chance of avoiding detection,” continued Rosen. “Finally, the courts end up becoming overburdened because suddenly there is a much increased workload, as employers and screening firms have a greater need to pull files to search for identifiers to determine if a court record with a name match belongs to the applicant in question.”
Rosen explained that Court officials need to understand that background screening firms only conduct background checks for employment purposes on applicants only after the applicant has authorized the background check in writing. Both the applicant and the employer want the background check report completed in the fastest time possible, usually within the screening industry standard of 72 hours.
Rosen also said any delay in the background screening firm’s ability to complete background checks in a timely manner only works to the determent of job applicants and employers. Background screening is also intensely regulated by the federal Fair Credit Reporting Act (FCRA), state laws, privacy rights, and guidance on the use of criminal records from the U.S. Equal Employment Opportunity Commission (EEOC).
“Courts should be wary of restricting the ability of employers to fulfill their legal obligation to exercise due diligence in hiring to ensure a safe workplace for employees and the public,” said Rosen. “Without the ability to perform background checks, employers are in a Catch-22 situation where they can be sued for negligent hiring in court, even if the same court that impeded its ability to perform background checks.”
The vast majority of employers conduct background checks. In May 2018, the NAPBS released its second annual background screening survey of Human Resources (HR) professionals that found 95 percent of employers conducted employment background screening. The NAPBS had commissioned HR.com to conduct the national survey of 2,137 HR professionals to gauge their views on background screening.
The NAPBS background screening survey – which defines a background check as “information compiled on an individual which may be considered when determining eligibility for a job” – found employers are utilizing professional background checks at a near universal rate in an increasingly global economy. The survey found 86 percent of employers cited public safety as the top reason they conducted background screening.
Founded in 2003, the NAPBS represents more than 880 member companies engaged in background screening across the United States that conduct millions of background checks each year. The NAPBS also offers the Background Screening Agency Accreditation Program (BSAAP) that has become a widely recognized seal of approval for professional background screening firms. To learn more, visit www.napbs.com.
ESR Is Accredited by NAPBS for Background Screening
Employment Screening Resources® (ESR) – a leading global background check firm – is accredited by the NAPBS and has made a commitment to uphold and deliver the highest level of industry standards in the critical areas of information security, legal compliance, client education, researcher and data standards, verification services standards, and business practices. To learn more, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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