Background Check Expert Explains How “Instant Clears” of Criminal Record Searches Can Be Problematic

Written By ESR News Blog Editor Thomas Ahearn

In his article “What Employers Need to Know About ‘Instant Clears,’” background check expert Attorney Lester Rosen, the founder and Chief Executive Officer (CEO) of global screening firm Employment Screening Resources® (ESR), explains how a new and innovative method designed to more quickly deliver a criminal record result when the search is clear – referred to as “instant clears” – can be problematic.   

Rosen writes that the idea of instant clears “is great in theory: a screening firm searches a database, online court system, or another source of instant information, and if a name is absent, the employer should be able to conclude that there is no criminal record to find. The search may include, for example, accessing a court’s online system remotely, or some form of screen scraping from a county court computer.”

However, Rosen points out that a “potential problem with an instant clear is the quality of the underlying data. If the data being used is not complete and up to date, there is the possibility that employers could base critical decisions on inferior information.” Rosen details several issues being reported in the 58 counties in California – where ESR is headquartered – that could potentially impact the decision to use instant clears.

  • The criminal online results are not the same as the public access terminal results since there can be missing cases or a delay in entering new cases.
  • Misdemeanors and other criminal cases are not available or shown online.
  • Cases available online prior to a certain date are not included, which impacts search accuracy and program consistency.
  • The online system is new and has issues with missing information.
  • There is no indication as to how far back the information goes or how often it is updated – disclaimer on site says the information is subject to errors or omissions.  
  • Felonies older than 10 years or so are not always on the site but are available on the court terminals in person.
  • Uncertainty over how far the online system goes back or how often it is updated.
  • Only limited information is provided, or some cases could not be converted to the current format and are therefore missing.
  • No hyphenated or two-part last names can be searched on the portal, and identifiers are not included in results.
  • No indication as to whether or not felony and misdemeanor cases are included.

Rosen – the author of “The Safe Hiring Manual” – explains that using stale or incomplete information for instant clears can lead to both “false negatives” where a person is cleared but has a criminal record, and “false positives” where a person is thought to have a criminal record but ends up either not being a match to the subject checked or the record is no longer reportable upon further examination.

Rosen concludes that while technological improvements to county court systems should make instant clears more dependable, “employers need to ask the right questions about the effectiveness and accuracy of an instant clear search in order to make a reasonable and informed decision on just how much reliance should be placed on it.” The article is at www.linkedin.com/pulse/what-employers-need-know-instant-clears-lester-rosen/

Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) – a non-profit trade association representing the background screening industry  – in 2003 and served as first co-chair. Rosen is a frequent speaker at numerous national conferences for “ESR Speaks” and has written articles, white papers and an online safe hiring course.

Rosen founded Employment Screening Resources® (ESR) in 1997 in the San Francisco, California-area. ESR is accredited by the NAPBS, undergoes annual SOC 2 audits, adheres to the Privacy Shield Framework, won the 2018 TekTonic Award from HRO Today Magazine, and was named to 2018 HRO Today Magazine Baker’s Dozen for top pre-employment screening services. 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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