Criminal Records

Written By ESR News Blog Editor Thomas Ahearn

The Executive Director of the Professional Background Screening Association (PBSA) – a non-profit trade group representing the background screening industry – stated in an opinion piece that the “accuracy and timeliness of any background check is dependent on access to personal identifiers like complete date of birth” in public records such as those on PACER (Public Access to Court Electronic Records).

In her article “Identifiers in Public Records Help Put Americans to Work Faster” published on the Morning Consult website on September 26, 2019, Melissa Sorenson explained that since 96 percent of employers conduct background screening – according to a survey of Human Resources (HR) professionals conducted by HR.com – it is “clear that employers use background checks to help them find the ideal candidate, and speed is essential.”

Sorenson wrote that although people may assume dates of birth (DOBs) “would be available to background screening companies, especially since the subject of the check already provided them with this information… DOBs are systemically unavailable in the federal record keeping system known as PACER, and an increasing number of state and local courts are also redacting this information.”

Sorenson explained how the lack of access to DOBs and other identifiers in public records stored in PACER used for background checks “makes it extraordinarily difficult for professional background screeners or consumer reporting agencies to conclusively determine whether or not a criminal record belongs to a particular individual, especially when the individual has a somewhat common name.”

With many people having the same name or very similar names in the United States, Sorenson explained how – without identifiers like DOBs in PACER – “false negatives can arise where a CRA does not report criminal record information because they cannot positively link the record to the consumer when the only identifier available is the name, potentially compromising the safety and security of others.”

Sorenson wrote: While PACER was originally intended for internal court use that would not require DOB, the reality is that it is a vital source for CRAs conducting criminal record checks and including identifiers is immensely important. At the state and local level, redacting these identifiers is often justified by citing privacy concerns, but there are tremendous, unintended consequences.

While redacting DOBs is often justified by privacy concerns, employers “utilize CRAs when conducting background checks because they are trained to properly handle personally identifiable information and are subject to strict regulations under the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act of 2003” and “state and local rules pertaining to data security and privacy laws.”

Sorenson concluded: To ensure employers can continue hiring the best candidates and jobseekers can continue to be placed in the right jobs, we must remedy this dilemma. As the House Judiciary Committee holds their hearing on the public’s right of access to the courts, they should consider the simple fix to this dilemma: Congress should direct the Judicial Conference to ensure access to dates of birth in PACER.

Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR), agreed. “While the screening industry strongly supports strong privacy measures, the disadvantages of removing dates of birth from PACER far outweigh privacy concerns. Getting qualified applicants hired quickly is critical to a firm’s economic success, and making it harder to search court records is to no one’s advantage,” he said.

“In fact, removing the date of birth is a disservice to those Americans who have similar names to people in court records, who must endure delays in employment because of the additional time it takes to get the information necessary on someone who is unlucky enough to be the innocent victim of a name match,” said Rosen, author of “The Safe Hiring Manual,” a comprehensive guide to background checks.

Rosen was the chairperson of the steering committee that founded the PBSA – formerly known as the National Association of Professional Background Screeners (NAPBS) – in 2003. The PBSA was established to promote a high level of ethics and performance standards for the background screening industry and currently represents nearly 900 member companies. To learn more about PBSA, visit https://thepbsa.org.

Founded by Attorney Lester Rosen in 1997, Employment Screening Resources® (ESR) is a leading global background check provider accredited by the PBSA under the Background Screening Agency Accreditation Program (BSAAP) that is a widely recognized seal of approval for background screening organizations committed to achieving excellence. To learn more about ESR, 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.

© 2019 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.