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An Introduction to Finding and Using Criminal Records in the Hiring Process

Guest post by: Lester Rosen

Article Overview: Many employers want to know if they are hiring a person with a criminal record. Failure to look for criminal records can show negligent hiring if an employer hires someone with a criminal record that harms someone. There are numerous web sites that promise to search through millions of records for an employer. However, the real story is much more complicated. Commercial “do-it-yourself” web site can get employers into legal hot water and are full of erroneous results. There are also legal complications in using criminal records. This article gives employers a brief overview on how to legally obtain and use criminal records.

An Introduction to Finding and Using Criminal Records in the Hiring Process

Searching for criminal records is much more complicated than it appears on the surface. Contrary to popular belief, there is no central database available to most private employers to instantly find a person's criminal record at one touch. The FBI database is only available to employers that are legally authorized to submit fingerprints, the readouts can be complex and there is even the possibility of errors in those records. With some 3200 counties in the US, screening firms have developed tools and techniques to identify potentially relevant counties to search, and nearly any county in America can be researched on site within 24-36 hours. The best practices for employers are to identify counties associated with the applicant and to search those counties by going to the courthouse. The way relevant counties are identified is first by using a tool called a social security trace that uses millions of record to show what addresses a social security number is related to. In addition, some employers also search counties where a person has worked or gone to school. Although such county level searches are very accurate, as with anything depending on human beings, there is still some small margin of error possible.

Even assuming a record is found, a professional screening firm must determine if there are sufficient identifiers to associate the record to the applicant, and even if the criminal record belongs to the applicant, numerous states have laws that restrict what can be reported. Many states do not allow the use of arrest records, and even if a state allows it, there may be EEOC considerations.

Even if a screening firm can report a conviction, the employer needs to consider whether the use of the record is discriminatory. An employer should not automatically reject an applicant with a criminal record, unless there is a business justification, taking into account such things as the nature and gravity of the act, the nature of the job and the age of the crime. Some state also have rules on the use of criminal records,. In fact, the state of New York enacted a whole new set of rules in 2009.

Employers should be careful in the use of commercially available internet databases that are advertised to search millions of records with instant results. Those 30 second searches are NOT a substitute for a real criminal check at a courthouse and probably would not demonstrate due diligence if used all by themselves. These databases are assembled from a hodgepodge of various sources that are willing to make their data public or to sell data, such as incarceration systems, state repositories or individual counties. These databases do not cover all states and may not be up-to-date, accurate or complete. Certain states do not provide date of birth, which is another reason a criminal record may not come up in a database. This can all lead to both false negative and false positive results from databases. A false positive means a person is branded a criminal who is not, and a false negative means a perosn with a criminal record is falsely "cleared."

In addition, the "do-it-yourself" sites do not relieve an employer of the many legal obligations under the federal Fair Credit Reporting Act (FCRA) and state laws to comply with all of the rules to perform legal background checks and have all necessary documents signed by the applicant along with other rules, such as notice of adverse action.

The commercially available instant criminal reports are best used as a research tool only by a professional screening firm to locate other places to search. Since they cover such a wide area, they can be very valuable in locating records that a county by county search can miss. However, these instant databases are also a potential source of litigation against employers and screening firms, with applicants filing lawsuits for being unfairly tarnished as criminal, or victims claiming that the employer did not exercise due diligence.

Even if there is a database "hit," under the federal Fair Credit Reporting Act, the screening firm must either reconfirm the details at the actual courthouse to ensure accuracy, or send a contemporaneous notice to the applicant at the same time, so they know that they are the subject of negative public records. California is one state where any database "hit" must be re-confirmed at the courthouse and Employment Screening Resources believes it is a best practice to reconfirm all database hits at the courthouse to guard against unfairly labeling someone as a criminal where their case has been dismissed, or they are the victim of identity theft or just happen to have the same last name as a perosn with a criminal record.

Some states offer access to the state police or central state court databases. Again, it takes a background screening expert to understand the value of such information on a state by state basis. There is also a difference between state court searches and searches federal courts.

All of this is just the tip of the iceberg. The bottom-line is that such searches are necessary, but can be complicated. Unless done right, an employer can find themselves in hot water.

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Article Tags: bacckground screening, background checks, criminal records, employee screening, employment screening



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