Use of Commercial Criminal Databases Becoming More Controversial as Employers Face More Risk when Screening

The use of commercial criminal databases and cheap “do it yourself” background check web sites will be the focus of increased scrutiny and controversy in 2014 as employers face more risk when screening job applicants as the demand for accuracy in background check reports rises. This is Trend Number Three of the 7th Annual Employment Screening Resources® (ESR) ‘Top Ten Background Check Trends’ for 2014. For more information about the trends, please visit https://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

There are numerous offers for “instant” criminal searches using databases, as well as “do it yourself” background checks on the web.  These criminal databases are not an official government collection of criminal records, or the FBI criminal database, but instead are gathered from a variety of available sources from commercial aggregators.  This leads to substantial issues as to completeness, coverage, and accuracy.

Although these databases are a valuable secondary research tool in the hands of a knowledgeable background screening firm to locate additional courts to search, database information in the hands of employers can lead to both “false positives” (where a person is falsely accused of having a criminal record) and “false negatives” (where a person with a criminal record is marked as clear). Consumers for example that have had a criminal matter set aside, or who share a name with  someone with a criminal record, can be falsely accused of being a criminal when they are not.

Conversely, there are giant holes in these commercially assembled databases. These databases have been criticized, for example, as being largely inaccurate for some large states such as California, New York, and Texas. Employers and the public can be put at risk if a person with a job related criminal record is erroneously “cleared.”

A related issue is the use of cheap “do it yourself” criminal searches by employers online. The problem is that these same potentially inaccurate databases are used and employers may not be advised of the legal requirements for a background check, including applicant consent and adverse action notices.

Part of the drive behind the U.S. Equal Employment Opportunity Commission (EEOC) Guidance adopted on April 25, 2012 was a concern with the accuracy of criminal records. Given the millions of background checks done by the screening industry, the number of complaints is extremely small. It appears however that often times, when mistakes do occur, the case is employers being given unfiltered information from a database that has not been verified at the courthouse.

Part of the issue is that  the federal Fair Credit Reporting Act (FCRA) in Section 613 allows a so-called “letter option” allowing a screening firm to report directly from a database provided a consumer is notified at the same time about the potential adverse information. Such an approach is not allowed in California which requires that information contained in public records be complete and up to date at the time reported, which typically creates an obligation to vet any potential negative information at the courthouse.

A group of background check firms called ‘Concerned CRAs’ – Consumer Reporting Agencies (CRAs) being the technical term for a background screening firm under the FCRA – have adopted as a best practice that all criminal information must be confirmed as being accurate and up to date before being provided to an employer since information that comes from a commercial criminal databases is subject to errors. Concerned CRAs, which reached its 200th member in November 2013, has adopted the position that: “Criminal records databases compiled by non-government entities will only be used as indicators of possible records. Prior to making any report to an employer about a criminal record from a database, the CRA will verify the information directly with the reporting jurisdiction. This ensures that employers make decisions based on accurate and up-to-date information.” More information about Concerned CRAs may be found at http://www.concernedcras.com.

The dangers of these “instant” background checks based on databases were demonstrated by a class action settlement in 2013 involving the use of databases. In November 2013, two background check firms agreed to pay $18.6 million to settle three class action lawsuits alleging violations of the FCRA for “failing to take reasonable measures to ensure the accuracy of background check report provided to prospective employers.” The two background check firms were accused “of violating the FCRA by providing incorrect, outdated or incomplete information to potential employers.” The two companies also failed to provide “consumers with copies of their consumer reports before delivering them to prospective employers.” The two defendants have denied all allegations in the class action lawsuits. A story by TopClassActions.com about the lawsuits is available at http://www.topclassactions.com/lawsuit-settlements/lawsuit-news/5437-background-check-firms-agree-to-18m-class-action-settlement.

It is also worth noting that in 2014 employers can expect to hear discussions about the accuracy of the Federal Bureau of Investigation (FBI) criminal database, which is only available when authorized by Congress or a state legislature. A 2013 report by the National Employment Law Project (NELP) ‘Wanted: Accurate FBI Background Checks for Employment’ highlighted the many sources of inaccuracies in the FBI database when used as a tool to look for convictions, and members of Congress have even started to review this issue. The report from NELP is available at http://www.nelp.org/accurateFBIrecords.

For information about background checks using primary source information from county courthouses, visit Employment Screening Resources® (ESR) – a nationwide background check firm accredited by the National Association of Professional Background Screeners (NAPBS®) – at https://www.esrcheck.com.

About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in the San Francisco, CA-area in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– 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 https://www.esrcheck.com, call toll free 888.999.4474, or email [email protected].