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 https://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 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.