Roughly Seven out of 10 organizations say they conduct criminal background checks on all job candidates, and for good reason. Background checks, when done consistently and efficiently, can improve safety and security, and lead to better quality of hires, longer employee retention and decreased legal risk. Yet despite these benefits there remains plenty of confusion in the marketplace about how to conduct the right type of search, what information is needed, where records are located and how to access them.
For example, according to a 2014 survey by First Advantage, nearly 40 percent of those who order criminal background checks say they are unsure about type of criminal record search to conduct. For example, should they do a federal or county search or should they just do a national criminal database search. Indeed there are stark differences to consider when determining the type of search to run—a federal search is a search only of federal court criminal records. A county search is specific to the county selected, such as the place of residence of the consumer/applicant, and which provides information on convictions in that particular county jurisdiction (which are non-federal or state convictions). A proprietary national criminal records database search may be inclusive of both state- and county-level convictions as well as federal convictions, but it is not as comprehensive or robust as a specific county or specific federal jurisdiction search.
Unlike the eventual “hire or don’t hire” decision that ultimately confronts employers, there is no one definitive criminal background check, no all-inclusive criminal database, and no silver bullet. There are multiple sources of different kinds of criminal history information, and multiple providers that offer them. Further complicating things are the varying rules and regulations, depending on the location of the organization and the candidate, and inconsistencies in turnaround time based on the type and geographic scope of the search. What’s more, from the time of an arrest to the time of a conviction at trial to an appeal, different criminal records are generated by many different sources. And there can be major inconsistencies from one jurisdiction to another.
Understanding Criminal Records
Criminal records may include but not necessarily be limited to: police reports, arrest records, fingerprints, criminal complaints, warrants, juvenile records, convictions, dismissals and/or appeals.
The location of where these records are housed can also vary. For example, arrest records might be held by local police, the state police, sheriff’s offices or the FBI, or at other law enforcement agencies, while criminal complaints and conviction orders are generally housed at courthouses or government records repositories. If jail time occurred, departments of corrections will have inmate records. There are also special repositories, such as registries for sex offenders, state abuse registries and various commercially aggregated criminal records databases.
As if this wasn’t enough, criminal records are accessed and stored through different methods. Some can be found electronically and are available online. Others are electronic, but not accessible on the Internet. Others only exist as hard copies on physical paper.
Locating and Obtaining Records
Those less familiar with the process might ask, “Why not just search every courthouse every time?” Although that is theoretically possible, the time and expense involved make it impractical. Each courthouse can charge a different fee to access its records, and there are over 3,000 in the United States. Furthermore, not every courthouse keeps online records. Depending on the location, a person must physically go to the courthouse to access criminal court records on file. Background screening services use local court researchers to assist with these tasks, but it would certainly be a challenge for an organization without these resources to cast such a wide net.
Turnaround time is another factor, especially in a competitive hiring situation. Average turnaround times vary depending on the scope of the search being run. National criminal and sex offender registries, plus state sex offender registries, generally can return results in less than 12 hours. County criminal record searches average between 12-48 hours. Statewide criminal searches take longer, with 24-72 hours being the average. According to First Advantage data, Florida trends better than average with just 15.3 hours as an average turnaround time for a statewide criminal records search.
Some jurisdictions have slower turnaround times due to technology limitations and other issues. States like Arizona, Pennsylvania and Illinois have slower averages of 10-12 days to complete a state repository level search. New Jersey State Police record searches “top” the list with an average turnaround time of nearly 21 days!
Other Risks to Avoid
Whether executing or outsourcing a search, there are a few common pitfalls to consider. For example, it may seem obvious, but employers should be especially careful when searching for criminal histories by using name-only matching criteria. This is especially apparent with consumers with “common” names. Unique identifiers in addition to the consumer’s name should be matched. Search for full names, including middle names. Unique identifiers include date of birth and Social Security numbers.
Also, if using a third-party background screening company, known as a consumer reporting agency under the Fair Credit Reporting Act (FCRA), employers have compliance obligations with the rules set forth in the FCRA. For example, the FCRA requires that employers provide notice and disclosure that a background screen may be run on the consumer, and they must obtain written authorization or permission from the consumer/applicants or employees before a report can be delivered by the background screening company to the employer. The employer must also certify that it is receiving the background screening report for a permissible purpose, (employment) under the FCRA. Prior to taking an adverse employment action (like not hiring someone), employers must also give the applicant both pre-adverse and adverse action notices, include a copy of the report that was pulled, along with a summary of their rights under the FCRA.
In addition to federal requirements, state and local jurisdictions sometimes have additional legal compliance obligations. Such rules may define the scope of time that may be included in a search, or restrict employers from inquiring about criminal history of an applicant in the written employment application (known as “ban-the-box” laws). Another example is the Driver’s Privacy Protection Act of 1994 (DPPA), which governs the disclosure of personal information gathered by state departments of motor vehicles. Due to the many complexities of conducting a background screening for employment purposes employers should consult with their own legal advisors on the appropriate actions depending on unique circumstances.
Determining Risk Tolerance
One of the most common causes of confusion related to criminal background screening is that companies are unsure of their own risk tolerance in this area. Too often, the individuals overseeing such searches for the same organization may hold inconsistent views, with some wanting to go “all in” when screening for criminal histories; whereas, others prefer to conduct screens that pass compliance requirements with minimal time and cost.
Ideally, companies will have a unified plan for criminal background checks. This starts with identifying—and having a consensus with—the company’s overall risk tolerance in employment screening. Different organizations will undoubtedly want to confront different issues specific to their business and job positions, but there are a few common yet critical questions most all companies can benefit from asking:
• Will the individual(s) being hired have unsupervised access to at-risk populations, such as children, the sick, or the elderly?
• Will they have access to sensitive customer information?
• Does their professional licensure require criminal screening? For example, within the financial industry, the Federal Deposit Insurance Corporation has established guidelines that include certain types of criminal screenings.
Based on their answers to these questions, organizations should consider creating job-specific screening packages that can help promote hiring consistency by applying the same requirements to all applicants. These packages should include tiers of what risk level the company is willing to absorb; for example, low risk, moderate risk and high risk depending on the position.
In addition to assessing a risk level based on the above factors, it’s often wise to categorize jobs based on categories of seniority (entry-level, management-level, executive-level.) After all, high-risk positions not only include those responsible for the safety and welfare of others, but also individuals in roles that may importantly affect public perception, brand reputation or investor satisfaction with the company.
Final review of any screening policy or program should be done in consultation with legal counsel, who can ensure the program being built is compliant with local laws, standards and other guidelines such as those set forth by the EEOC, all of which tend to be quite nuanced.
Background screening offers many benefits when done right. It can ultimately yield more informed, more efficient and smarter people decisions. By crafting a policy that’s based on a calculated risk assessment and applied consistently across the organization, employers can leverage their screening program in such a way that protects the organization, reduces turnover and mitigates legal risk.