If you are looking run a Criminal Background Check, it's best to take an all or nothing approach. Either fully commit to checking each possible jurisdiction for possible criminal records, or don't check any at all and operate on faith. (I don't recommend operating on faith) Performing anything in between can result in misinformation, a false sense of security and regulatory non-compliance which means serious financial liability for you and your company.
A comprehensive criminal background check consists of the following activities:
- Validating the subject's identity and documenting an address history
- Performing a nationwide criminal database search
- Performing a sex offender registry search
- Cross referencing the subject's name against the Homeland Security Terrorist Watch list
- Performing a county court search in each county of residence found on the address history search (#1)
- Performing a federal criminal court search
The above set of searches will find a record of criminal activity on a local, state or federal level within the United States. Furthermore, any criminal records found will be matched and validated so that you can act on them with confidence. Here's why this is important.
The first risk with performing a less than complete criminal background check is the potential for retrieving bad and incomplete information. With 318+ million citizens in the United States, there are more than a few people with very similar identifiers such as first name, last name and date of birth. Because of this, many criminal records databases return (no fault of theirs) information that isn't on the same search subject as you're looking for. You may be able to spot an inconsistency based on an incorrect address or some other data point that doesn't fit with the information you have; however, it will take time and effort to decode and make sense of this misinformation.
A comprehensive criminal background check will eliminate this confusion by positively identifying the subject and then validating each derogatory result by matching at least three identifiers (name, date of birth and social security number).
A False Sense of Security
The second risk with performing a less than complete criminal background check is the risk of missing a criminal record. Three common examples we see other background screening firms performing are as follows:
- A federal criminal court search isn't ordered, but the individual was convicted of a federal crime (e.g. running drugs or guns and crossing paths with the D.E.A., F.B.I., Secret Service or A.T.F)
- A national criminal database search isn't ordered, leaving local court searches as the only non-federal criminal search. The risk here is if the individual committed a crime outside of the area where they live and work. If an individual lives in Texas, but committed a crime while on vacation in Oregon, without a nationwide search, this record would never be found. Note, these nationwide databases are only as good as the people inputting the information into them. They are not 100% complete, which is why we augment them with county court searches.
- The county court searches are limited to just one county, when there may be multiple counties of residence within the last seven years. In the same vein as #2 above, the accuracy of reporting county to county can vary.
A comprehensive criminal background check combats this risk by identifying and executing searches in as many jurisdictions as possible, while remaining cost effective.
The third risk with performing a less than complete criminal background check is the likelihood of running afoul of a very powerful regulation, the Fair Credit Reporting Act (FCRA). The FCRA is a consumer orientated regulation that restricts how employers, landlords and other companies can use an individuals' consumer credit history. It's important to note that the reach of this law goes beyond an applicant's "credit report" and includes her criminal, civil and driving history too. In the last 3-4 years, there has been a serious uptick in the volume of FCRA related class action lawsuits brought against both screening companies and their customers, the employers. These class action lawsuits have resulted in TENS OF MILLIONS of dollars in fines.
One of the very common mistakes that leads to class action lawsuits is the reporting of non-reportable records to an employer, who then uses that information to make an adverse decision regarding the applicant. An incomplete criminal background check, where the derogatory records are not validated at the county, state or federal courthouse, is not permissible to use to make an adverse decision. See the following examples of where this has happened. It's important to note that compliance with the FCRA doesn't stop at just requesting a comprehensive report. There are additional steps to compliance that can be found on our employer compliance site.
- Dish Network & Sterling ($4.75M) https://secure.dahladmin.com/ERNST/FrequentlyAskedQuestions
- NEMF (875K) http://www.landlinemag.com/Story.aspx?StoryID=27130#.VedKJ_ZViko
- Kevin Jones: http://www.nydailynews.com/new-york/bad-background-check-cost-manhattan-dad-job-suit-article-1.1777819
- First Advantage ($1M) http://www.classactionsnews.com/sites/default/files/downloadables/settlements/first_advantage_lns_screening_solutions_background_screening_class_action_settlement_notice.pdf
- On-Site Manager ($1M) http://www.law360.com/articles/389523/renters-settle-class-action-over-outdated-credit-reports
- Swift Trucking ($4.4M) http://www.landlinemag.com/Story.aspx?StoryID=26929#.Ve5HKTZRHic