http://www.cnn.com/2010/CRIME/03/10/ohio.state.shootings/

The Potential Pitfalls of Social Media Background Checks

http://www.indystar.com/article/20100103/NEWS14/1030391/Bringing-teacher-misconduct-to-light

via Recruiting: EEOC warns about background checks.

Employers frequently call our offices to request FBI fingerprinting as a pre-employment screening service for their company, but are dismayed when told that this service is only available to employers required by state and federal legislation to have fingerprint based background checks.

Certain job industries, such as education, volunteers, medical, and childcare providers, are required by law to receive fingerprint background checks through the FBI or state fingerprint databases. Certain private providers are authorized to electronically scan and transmit applicant’s fingerprints to these federal and state databases.

The truth is that neither the federal nor the state fingerprint database is the single best source for a pre-employment background check. The information reported varies from jurisdiction to jurisdiction and criminal records submitted into these databases may include arrest information not resulting in convictions, records that extend beyond reporting period scope, sealed or special disposition cases, deferred adjudications, and many other record types that may not be permissible for use for pre-employment screening purposes. The FCRA (Fair Credit Reporting Act) and various state legislation limits what type of records can be used for pre-employment screening purposes.

A 2005 study conducted by NAPBS (National Association of Professional Background Screeners) found that in a significant percentage of searches, the FBI database returned erroneous or incomplete information. The study, conducted by Craig N. Winston, an assistant professor of criminal justice at Sonoma State University, found that the FBI data lacks proper identifiers to credibly link a criminal hit with the subject of the investigation. Another finding was the large number of missed records and false positives that were generated. For example, when analyzing a sampling of 93,274 background checks in the state of Florida, Winston’s search revealed that the database missed 11.7 percent of the criminal records it should have identified. Even worse – of the more than 10,000 criminal records found, 5.5 percent of them were falsely attributed those who were not convicted of a crime. Results of this study can be found at http://www.napbs.com.

A better solution for employers is to conduct criminal record research by county and city courts, based on the jurisdictions where the applicant lived, worked and went to school. A nationwide criminal and a sexual offender database check can be added to cast a wider net for an even more thorough pre-employment screen.

Public Records

After dealing with dejected looks and sighs, the obvious question comes up: “Where do you get your information?”  “Public Records,” I reply confidently!  “You mean public, as in I could get them myself?”  “Well yes, but it’s a little more complicated than that” is my slightly annoyed reply.  “So I don’t have to pay you to do them?”  My first inclination is to say something snarky like; “well I guess I’ll go back to washing cars,” but I realize it is in my best interest to educate the masses, so here goes nothing!

First of all, what is a public record?  Simply put, it’s any record that the government keeps which is of common interest to the rest of us.  So for instance, if you go to court for theft and are afforded your constitutional due process, then it’s in the interest of the public and for the common good that the record of that government proceeding is kept open and public.  This allows for the rest of us to see who the potential bad guys are in our midst.  Secondly and probably most importantly, it provides transparency.  No, not like that, so put your X-Ray specs away.  They don’t work anyway, just ask my seventh grade teacher.

Public record transparency makes sure the government does not infringe on the bad guys’ due process.  Why is that important you ask?  Because he or she might not be guilty, or the case might end up being dismissed.  In addition, you might be that guy one day.  In short, it is in everyone’s best interest to see behind the walls of justice.

So here is the skinny.  When it comes to criminal records there are about 3500 “upper” or felony courts and 10,000 “lower” or misdemeanor courts in our country.  These courts maintain  records for every person processed through its doors, whether the case was dismissed, is still open, pending, or was adjudicated either guilty or not guilty.

The county courts keep records of felony charges and reduced misdemeanors.  Felonies are charges that can result in incarceration in a state prison and are generally more serious in nature than misdemeanors, which can result in jail time in a county or city jail.  Local city courts keep records of misdemeanor charges, ordinance violations, and traffic cases.

There is No Comprehensive National Criminal Database

These courts are not tied together by a unified information system.  Each state contains a central repository where the courts are supposed to report case information to; however many state repositories contain mostly felony cases and only some misdemeanors.  Even the FBI criminal database is not comprehensive.  On average, statewide and federal database records are about 60% to 70% complete.

So what’s a girl to do?  Well that is easy, just go to the internet of course!  If you enter background checks, let’s say into Google, you’ll find 8,200,000 entries.  Amongst these results is a multitude of background screening providers offering instant national criminal results.  Now, if the FBI can’t get it right how do they expect to?  The answer: they do not.  Database checks are NOT real time searches and they are not comprehensive.  They contain static data from various arbitrary sources across the United States.  Most importantly, they are not FCRA compliant.

FCRA Requirements

What is the FCRA?  Well it’s something else for you, Mr. Employer, to worry about.  The Fair Credit Reporting Act is the federal Law that protects potential and existing employees from undue scrutiny with respect to background screening.  As a result, there are a number of rights afforded to the employee under this act as well as employer responsibilities.  For instance, employers must notify applicants in a specific format that a background check is being done. The employer must advise the applicant of their rights under the FCRA.  They must notify the applicant if they are being denied employment due to derogatory information discovered on the background check, and offer a means to dispute any negative information.  If that is not enough, employment screening reports generally cannot contain information other than convictions.  The EEOC, Americans with Disabilities Act and various state versions of the FCRA also contribute to complicating the process.

So where does this leave you, the self-serve background check investigator?  Well, it means you have to take the time to educate yourself in order to avoid the pitfalls of conducting an incomplete or erroneous background check.  The other option is to retain a professional investigative service that is FCRA compliant.  Companies should post their compliance standards and professional affiliations on their web sites.  They should understand the complexities involved with being a responsible consumer reporting agency (CRA).  Additionally, membership in a well-known trade organization such as ASIS international or NAPBS is recommended.  If you want to take on the task of completing background checks yourself, it is possible, but it is advisable to take the time to educate yourself first.