Employment Screening: Background Check Basics
The nuts and bolts of how employment screening background checks work as well as some results you may see and what to make of them.
Criminal Background Check Basics
If the Hippocratic Oath’s basic tenet is “First, do no harm” then perhaps the first guiding principle of Human Resources Managers is “First, make no bad hiring decisions”. More than any other process in an organization, employee selection and screening may change a company’s destiny. In that regard, a business’ first line of defense is to protect their employees, assets, and tclients is a criminal background check. While a suitable criminal background check can be less than fifty dollars, it should be noted that the cost of a “Bad Hire” is incalculable.
The question then always becomes, “How do I conduct the best background check for the least money”?
The Basics
This is sometimes hard to believe, but there is no single database that allows an employer or a background check company access to all of the states criminal records. Even the NCIC, a criminal database available only to law enforcement agencies, is not a complete database of criminal records. Reporting of records to the NCIC is dependent on the states or other courts forwarding the data. It is often not current (as much as two years behind for some states) and rarely has current disposition information.
Multi-State Criminal Background Check
This is the closest thing to a national criminal background check database available to employers and has become the standard primary background check requested. The results of this report are available instantly and should always be the first report ordered. This report includes about 80% of the criminal records from 46 states that have been reported by the three thousand-plus counties to the various state databases. This report usually also includes a check of the sex offender registry in most or all states. Please note that, if the sex offender failed to register, they might not show up in this type records check. Moreover, the following essential database searches are often a part of the multi-state criminal background check.
OFAC Blocked List- (Terrorist Watch List-Office Of foreign Assets Control)
INTERPOL Most Wanted- NS
DEA Fugitive List
Denied Person List
Debarred List
OTS List- NS (Office Of Thrift Supervision)
Bank of England Sanctions List- NS
European Union Terrorism Sanctions List- NS
OSFI – Canadian Sanctions List- NS
Australian Reserve Bank Sanctions List
We always recommend that any criminal background check begin with this search since it casts the widest net.
State-Wide Criminal Background Check
Q: What results can we expect when ordering criminal background checks from individual states who supply the national database?
A: Compared to the multi-state criminal background check, many criminal records from forty-five other states, as well as the offender registries, are not being checked. The data contained is often late, incomplete, or not reported from the originating court.
Besides being somewhat expensive, even the primary state law enforcement agency’s criminal records data is often incomplete. Bearing in mind that the state’s criminal records are often only as good as the counties’ timeliness and accuracy reporting criminal record information to the state. We have seen many examples where employers regretted relying on the state’s law enforcement agency database. The plaintiff’s attorneys quickly found records that were not included as a part of the state law enforcement database in the county records of the employee accused of assaulting another employee or a member of the public. They likely used the same employment application that was now a part of the proceedings and had the criminal records checked in the offending employee’s prior counties of residence.
Many records would not be found without a check of the separately maintained Federal criminal records systems, which contain only about 10 percent of all arrest records.
Negligent Hiring
The theory of negligent hiring cases is:
“If you could have known, you should have known.”
With negligent hiring you can be sure employers wish they had checked those same county records. Most background check companies would agree that in our experience, the quality and the content of the records from state agencies are significantly lower than those obtained directly from the originating court records.
Remember, the data in state repositories are second-hand information gathered from various courts and police departments statewide. Some states have statutes that require various criminal justice agencies to report criminal records to the state repository, but you can be sure this is still not done on a complete and timely basis. This is particularly true in cases where the record is an arrest only with no conviction. Often, even felonies and misdemeanors that have been pleaded down to much lesser charges are not reported by the counties at all. Nonetheless, any employer would want to know about these charges.
Many state record administrators have stated that they estimate that no more than 70 to 80 percent of all criminal data from the police and county criminal courts were ever reported to the state illegal record center.
County Criminal Background Checks
No matter what other searches are ordered, we always recommend that, as a minimum, an employer adds a search of the county or counties where the applicant has lived for the last several years. The results from these searches are usually provided within 24 to 48 hours. For the reasons outlined above, searches in those courts of origin are critical in any background check. County superior or felony-level court, usually located in the county seat, is the most commonly searched. This court of origin contains the records for the felony-level cases that originate in that jurisdiction.
A manual county felony search at that location will reveal the following records:
Felony charges that were pleaded down to a misdemeanor conviction. (except in some cases domestic court charges are never reported if probation terms are satisfactorily completed)
Felony charges that resulted in a felony conviction and bench warrants issued by that court. Pending final action for all cases and convictions that have not been sealed or expunged. One aspect of the criminal justice system that is overlooked to the detriment of job applicants and employers is the true nature of the crime someone is charged with. When making an arrest, officers are trained to file the most severe charges possible. Suppose an officer has any discretion regarding whether an offense is classified as a felony or misdemeanor. In that case, they will almost always charge for the most severe felony and let the courts and the defendant deal with it. As a result of this practice, many more cases wind up in the felony courts, affording reasonable grounds for plea-bargaining to avoid lengthy and expensive trials.
This is the way many felony cases end up as misdemeanor rather than felony convictions. When viewing an applicant’s criminal charges, always keep in mind law enforcement’s propensity to file the most severe charges possible. While this practice may be convenient for the court system, it is not always just or fair to the person being arrested.
For example, take the case of two young brothers fighting. One is eighteen years old, and the other is seventeen years old. In this case, the eighteen-year-old was charged with “assault on a minor,” a felony. Just reading the charges cast a very negative light on this applicant, since no mention is made of his arrest details. Another actual example might be someone charged with “felony public discharge of a firearm.” No mention is made that the event occurred in celebration of New Year’s Eve. While the practice of firing a gun in celebration of an event is not a good idea, it is not the picture that comes to mind when one reads just the charge. Still, another case we saw concerned a man charged with burglary. The arrest charges were unknown because the person charged owned the apartment. He was charged with burglarizing because he had entered the apartment without notice to, or permission from, the tenant.
Up to Date Information and the Fair Credit Reporting Act(FCRA)
The Fair Credit Reporting Act requires that, before information may be used adversely in employment decisions, it must be verified as the most up-to-date and recent information. A county criminal background search in one or more counties is the only way to comply with this requirement.
Even the FBI web site says, “A record provided to the subject for personal review contains only information maintained by the CJIS Division and may lack dispositional data and arrest records maintained only at the state level.”
Q: What are the two primary responsibilities the FCRA requires an Employer?
A: The employer must obtain a signed consent form from the employment applicant and providing the employment applicant with a written disclosure that a background check may be requested.
The forms that must be signed include the Authorization for Release of Information Form and the Disclosure Form. The release must be on an entirely separate form and can not be part of the employment application, nor may it contain any other language except the release.
Should the background check (Consumer Report) include derogatory information that causes the employer not to hire an applicant, the following steps must be taken:
- The applicant must be given a copy of the background check (Consumer Report) along with a “Pre-Adverse Action Notice” and a copy of the “Summary of Rights Under the FCRA.
But let’s suppose the employer makes a final decision not to hire the applicant after a reasonable time. In that case, the employer should send the applicant an “Adverse Action Letter” and another copy of the “Summary of Rights Under the FCRA.”
The applicant has the right to dispute the accuracy of the information included in the background check. If so, the background screening company must re-investigate within 30 days. Contact information for the screening agency that completed your applicant’s background checks is included in the Adverse Action Letter, and the candidate should contact them directly.
Summary
While background checks have become a routine part of the hiring process, the importance of a quality criminal background check should never be underestimated. We find the phrase “A company’s future is in its employees’ past” to be true the majority of the time.
