You and Your Criminal Background Checks

You and Your Criminal Background Checks

Using criminal records to determine a job applicant’s eligibility for employment is a complex and generally misunderstood process.

There are two primary “myths” that exist:

1. There is one single data source containing the criminal records of every city, county and state in the United States and;
2. It is possible, through a criminal record check, to uncover 100% of every job applicant’s criminal record.

Both are false.

The FBI has a database of every person ever fingerprinted in the US. But you can’t use it unless the government allows it. Government-regulated jobs like bank employees, teachers (in some states) and airline pilots are required to be fingerprinted prior to employment and those fingerprints are searched against the FBI database. The rest of us must use the federal and county courts to search for the criminal records of our job applicants.

There are 3143 counties and county-equivalents in the United States. Additionally, there are 13 Federal Circuit and 94 Federal District Courts. Each of these jurisdictions stores their own court records. The federal courts are a separate system that, unlike state and county courts, has a single access point known as “PACER” though access is restricted to certified agencies.

Although overseen by states, county courts have almost total control over how they are organized and operate. Generally, misdemeanor records are housed with the County Clerk or “lower court” while felony records are stored in the district or “upper” court. Sometimes these two records reside in the same building or, at least, within close proximity of each other. Some, like Los Angeles CA or in New Hampshire, keep felony records in a central location but store misdemeanor records in multiple court facilities scattered throughout their jurisdiction. Unless these counties are “linked” through a reporting network and that network is accessible to the public, a thorough record search requires a visit to each courthouse.

What about online access to court records? The number of counties with online access is growing and increases daily but the vast majority do not have online access. The number is estimated to be 30-35% but many require legal authorization, a subscription, etc., to access.

This means, to search for criminal records in 65% of counties in the United States, someone has to physically visit a courthouse. Upon arrival, the researcher must follow the rules for searching the records. These “rules” range from easy – a public access computer terminal for example – to difficult i.e. submitting a written request to a court clerk and waiting (sometimes days/weeks) for the request to be fulfilled.

What about states? Don’t they store criminal records? All states retain records in some manner. Criminal records originate at the county level and are then “uploaded” to the state. How these repositories (also known as “statewides”) are maintained, i.e. how current and complete the records are, varies greatly by state. Additionally, the public’s access to state-held records ranges from zero to 100%. California has no public access to state record repositories. Texas has access but doesn’t force counties to provide data so the records have no credibility. New Mexico, Pennsylvania and South Carolina maintain online portals with real time access to their criminal records.

In summary, there are over 3000 misdemeanor and 3000 felony courts containing criminal records in the United States. Each court has its own location and rules for searching records. Some have online access but most do not. Some states provide access, some don’t and not all records are reliable.

And while some counties are linked to the state, no state is linked to another state.

So what are these National Criminal Searches being offered by background check companies?

In 2002, large data companies began aggregating (combining) different public record sources into one database and selling it to employers as a fast and inexpensive way to check an applicant’s criminal record. Because the data sources “touched” all 50 dates, it was called a “National Criminal File”. That term (National) implies that if a person had a criminal record, anywhere in the United States, it would be reported. Nothing could be more inaccurate.

Databases, by definition, are commercial products owned and operated by third parties. They purchase or license the data from public providers such as counties, states, probation and corrections departments, sex offender records, etc. Like state-held records, though, every jurisdiction doesn’t operate the same way or necessarily contribute data. California might provide corrections or “most wanted” data but, without county records (and none are available from CA), this only tells an employer their applicant has been in a state prison or is wanted by the police. This applies to other states like New York, Georgia and Louisiana who might have data but don’t offer it to third parties.

It is not, by any definition, a comprehensive search of criminal records on a national scale.

The issue isn’t the database but rather how its use has evolved. Databases were never intended to be a primary search tool for screening job applicants. However, with employers’ perception that these databases are truly “national” and their accessibility (read: inexpensive and fast), these searches now dominate the background check industry and its market. Databases are so “dominant” that laws like the Fair Credit Reporting Act (FCRA) have been modified to specifically address how they’re used in the employment process.

So what’s the answer?

There isn’t any one answer that addresses every employer’s needs. Restaurants, for example, tend to have less time to wait for background checks than insurance companies. While a correlation can be made between the cost of high turnover and ineffective hiring practices, the overwhelming consensus is that it’s better to do something than nothing. The best strategy is to make an educated decision that incorporates your business’ specific needs and its budget and time constraints. If “time is of the essence” and the budget is limited, consider using a database search. However, please consider these factors:

• If the database doesn’t include county criminal data from most of the counties in your state (or states) where your locations operate, you are not truly screening your applicants for criminal records.

• Check to see if your state offers a “statewide” search. If yes, ask what records are included (or excluded) and confirm 1) how often the records are updated and 2) how far back (in years) they go. Remember: Check your Applicant’s address history report. If they recently moved from another state, consult with your provider to expand your search scope.

• If your state isn’t included in the database and your state doesn’t offer a statewide search, you should use the applicant’s address history to select his/her counties of residence for the past seven years and search those counties for felonies and misdemeanors. This is the most effective search scope available but it costs more ($20-$40) and will average 48-72 hours in time service.

Summary

Please remember: no process guarantees 100% assurance you find every criminal record. Adjust your process to match your expectations and the requirements of your business. Your background check provider should be a partner in this process and assist you with any questions.