National criminal databases… liability or necessity?

In an age of split-second data accessibility, instant gratification has become a standard expectation and the screening industry is no exception. One of the toughest jobs a screening firm faces is the education of its’ clients. The screening industry is evolving in leaps and bounds and the traditional methods of screening are transforming as technological advances provide expanded resources for performing a background check. Third party companies who have amassed data used in the screening of employees have made their debut and their numbers are on the rise. Many background screening companies market information from these databases as a “national criminal search”. Dubbing it a “national search” gives an often-misunderstood impression, implying that they cover the entire country. In truth, what makes them “national” is that they contain some degree of data from every state and may also contain information from various governmental sources. Far from national in our book, yet, they rightfully tout their goods as the largest collection of data relevant to the screening process.

“National” databases are useful tools that increase the scope of a background check when used properly, however, there is a risk in relying solely on a “national” database search when conducting employee background checks and there are several reasons why.

Perception vs. Reality
The screening industry recognizes that HR professionals are pressured to get the person with the proper skill-set into a given position and are faced with time constraints, policy requirements and a juggling act to get it all to come together. The process is time sensitive and multi-faceted; the background check portion of the program is just one of many critical steps. The “national criminal search” is understandably an attractive solution. It’s quick, it’s national, and it’s inexpensive, so what’s the problem?

The issue is that it’s not national; critical information could be missed unless the employer is aware of where holes in the data exist. Conversely, only running a county search can potentially miss information that the “national” database could provide since it contains numerous locations and sources of information.

A perception has been formed that background checks can be conducted with the click of a button. One can look up a telephone number on the Internet and the ensuing screen almost begs the user to click a link to perform an instant background check on the query subject. We watch CSI and see that just a partial print comes back in seconds with a positive match, color picture and complete dossier of past criminal deeds for the subject.

The truth of the matter is that there is no central database that contains all criminal information. No magic pill exists. Background screening is not as easy as clicking a link on the Internet. Most HR personnel know this; however, somewhere between the fact and fiction of performing a background check is where we find many professionals fall in their understanding of the processes, information and challenges that exist in returning accurate information as timely as possible.

The screening industry is largely made up of professional, skilled, educated businesses who spend a great deal of time and resources to keep abreast of changing legislation and to ensure compliance at all junctures in the screening process. Legal compliance must happen at both state and federal levels. Screening firms understand that information sources not only lack standardization, but we find ourselves standing on a shifting carpet as we see changes happen before our eyes and must constantly adjust to remain compliant. Background screeners must ensure their own processes are compliant while undertaking the task of educating clients in order to support and encourage their compliance, as well.

Is there a benefit in using “national” databases?
One word: Absolutely. These databases expand the scope of your search immensely. Many of these databases include state level sex offender data, international and national security sources (such as the Office of Foreign Assets & Control; OFAC) and court record information from many states. It is like casting a great net across the country, just be aware that the net does have huge holes where some state’s criminal information may not even be present in the database and others may only cover certain areas in a given state.

Another observation point in utilizing database information is ensuring legal compliance. The information in the national databases is often collected from hundreds of sources and the scope and timeliness of the information varies greatly. Compliance requirements for the “national” searches are no different that those in place for other types of consumer reports; however, most other reports are obtained directly from the source and are therefore considered current and up to date, eliminating the need for re-verification or consumer disclosure. As with any consumer report, legal compliance is an issue and specific requirements must be met as dictated by the Federal Fair Credit Reporting Act (FCRA).

FCRA Compliance
The Fair Credit Reporting Act (FCRA) is the federal law that governs consumer reporting agencies and the reports they provide. Reports provided by a background screening company for the purpose of screening employees are consumer reports and fall under the legal auspices of the Fair Credit Reporting Act. Section 613(a)(2) states that a consumer reporting agency that is reporting public record information must either notify the consumer that information is being reported or maintain strict policies and procedures to ensure that information is up to date.

If you are receiving information from a national database, there is a good chance that much of the information is not up to date as required by the FCRA. If the consumer reporting agency (CRA) utilized opts to use the information as-is and notify the consumer, you could be using incomplete data. If the CRA is re-verifying any hits with the source of the information, in order to verify that the information is up to date and has not changed, there will typically be additional fees and extended turnaround times. One of these two steps MUST be occurring if the information is not up to date.

Best practices
Searching individual counties where the individual is known to have resided, been employed and attended school is a traditional best practice. If an organization is just performing county level criminal searches, it is recommended that they include the “national” database search. Conducting a search utilizing a combination of all available resources is a best practice when conducting a criminal background check.

The liability in negligent hiring is great. Statistics show that employers lose 79% of negligent hiring cases and courts have ruled that employers have a general duty to perform a criminal background check. It is critical that an organization fully understand what they are getting in the searches being provided by a background screening company. If using a “national” database, ask for a data matrix that illustrates the data present in the system and the frequency in which each source is being updated.

The bottom line
Be educated. Background screening is a critical part of the hiring process. It doesn’t have to be difficult or costly to perform a proper background check, though, due diligence needs to be exercised up front when deciding upon a screening policy and which searches best fit an organization’s needs.

There are several critical questions to ask when evaluating your organization’s screening program to ensure that intent matches with the end result. What is the objective of the screening program? What is being provided by the screening company? Are the goals of the screening program being met through the searches that are being performed? Are proper legal compliance measures being practiced in the reporting and use of information?

The purpose of a screening program is to reduce liability by making efforts to prevent negligent hiring, to develop a higher quality workforce and reduce turnover. Being educated is vital to the process so that liability can be intelligently managed.

The “national” searches are therefore an important component of any screening program and along with the proper education, consideration and policies are a great tool to help meet the goals of a legally compliant screening program.