“Nationwide Criminal Background Checks”: Too Good to be True?
If you are an employer, you want the best employment background check that money can buy, unless your budget does not allow it. As a Human Resource manager, you search the internet for the background check that offers the most coverage, provides the most detail and will still fit within the budget set forth by management. This typically leads you to looking for a “nationwide” criminal background check, because after all, if it is nationwide then it must be the best! Sadly, these checks are far from the best, and in many cases may cause employers to hire an applicant with a record and place their company at a higher risk for lawsuits.
“Nationwide” criminal background checks can be a great addition to your employment screening program, but should not be utilized as a stand alone product. There are too many unknowns when dealing with databases and relying on this data to make an employment hiring decision can be disastrous for the employer. The process of obtaining criminal records is complicated, based upon the complexity of the current criminal justice system in the United States. You should rely on a company that has an understanding of the criminal justice system and the court process. Many times the companies that offer “nationwide” criminal background checks do not have a background in criminal justice, and would be unable to guide the employer on important issues that might arise during the course of conducting the criminal background check.
The Criminal Justice System
In the United States, we have approximately 3,141 county courts (higher – felony) and over 11,000 municipal (lower - misdemeanor) courts. Each of these courts have heard and adjudicated thousands of cases for thousands of defendants. There is not a central record keeping office that obtains records from each of the 14,000 or so courts within the US. In fact, the courts themselves are not required by law to send their records to the state repository. In certain states, the state will actually charge the county if that county wants to submit their records to the state repository. In these cases, the county will not submit their records to the state. This means that the courts keep and maintain their own records, almost exclusively. In some southern states, there are even county courts that are not computerized; instead they rely on hand written docket books for record maintenance. Criminal records are public records, true, however that does not mean that they are free. It is up to the specific county to decide if they wish to charge for the access to a criminal record. There are about 11% of counties that will charge for access to their criminal records. This charge is on a per name basis as well. There have been governmental agencies created to manage this process in at least one state.
What is a “Nationwide” background check?
A “nationwide” criminal background check is a static database of aggregated records that has been purchased from data wholesales, state repositories, department of corrections, police departments and sometimes county courts. The background checks are nationwide in the sense that most of them contain data from all 50 states. The background checks however, fail to actually contain data from all of the courts in the United States. In most cases, these “nationwide” background checks don’t even contain court data from the majority of states they claim to offer. Take for example, a number of counties within southern states, that do not have computerized records; a “nationwide” database provider would have to copy the hundreds of thousands of records from log books by hand into their database, and this practice is simply not occurring.
Since we now know that not even all counties have computers, how then is there a service selling their records? The short answer is that they are not. If you take the time to look at the coverage and/or jurisdictions being offered in the “nationwide” background check that you are purchasing, you will find out that the majority of the records are from various Department of Corrections databases. What this means is the applicant must have been incarcerated in the state prison system or under their supervision to be found. This is cause for concern, since 70% of all criminal convictions are misdemeanor offenses, which will not usually result in prison time. The majority of felony offenders are not sentenced to prison either. There are many of these “nationwide” database that offer records from the AOC (Administrator of Courts). These are records that are sent to the state repository by each county. There is not a mandate or law requiring this practice to occur. It is up to each individual county to submit records, and thus this is not done by every county, nor is it completed within a certain timeframe.
“Nationwide” Checks and the Fair Credit Reporting Act (FCRA)
While a “nationwide” criminal database check may contain over 250 million records, are they enough for an employment background check? The Fair Credit Reporting Act reads that if an employer utilizes a third party agency (CRA – Consumer Reporting Agency) for employment background checks, they must ensure maximum possible accuracy when compiling the data. It is nearly impossible to ensure the accuracy of the reports when it is unknown where the data is coming from, how often the data is updated and how complete the data might be. Furthermore, the data returned in a “nationwide” criminal background check may be incomplete if it is merely from a police department. If a record returned on the report does not contain the final court disposition (outcome), this might be interpreted as cause for not hiring the applicant. In this case, the end user (employer) has to determine if this arrest resulted in a conviction or if the case was dismissed. The “nationwide” criminal check is unable to offer the answer to that question, because the data is from the police, not actually from the court where the case was adjudicated. This can have legal ramifications for an employer who makes a hiring decision on incomplete data and results in an FCRA violation.
