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The Truth about ‘National Criminal Record Checks’

What Some Background Screening Companies Really Don’t Want You to Know

right-wrongThe Truth about “National Criminal Records Search” for Employment Screening
By Michael Mays, President
Employer’s InfoSource

If you take your background checking and verification process seriously (and we’re sure that you do or you wouldn’t be reading this), you should know the facts about what is widely, but incorrectly referred to by many in the employment screening industry as a “National Criminal Records Search.” Or “National Record Check.” What some background screening companies would prefer that you don’t know, is the so-called “National” record search is not national and when used as your only source for criminal records search, is actually completely inadequate and quite risky.  You see, the use of these databases, when solely relied upon for employment screening purposes, are not considered best practices and are not thorough, complete or updated with any regularity – if updated at all.

[For clarification, this paper is about privately maintained, commercial databases that have nothing to do with the national criminal record database that the Department of Justice / FBI maintain as an official repository for national criminal offender information.  Access to such DOJ databases are restricted to specifically authorized law enforcement personnel.]

Here is where the problem lies: While adult criminal court records are public records, not all courts make their criminal records available in mass to the database companies that purport to offer a “National Criminal Record Search.” There are over 6,800 court jurisdictions in the U.S. (not including Federal court jurisdictions), and each county maintains records independently.  Even within each county (with few exceptions), court records are kept at both the lower court (Municipal Court) and high court or (Superior Court) levels. (There are also many circuit courts that fall somewhere between lower and higher courts.)  And even today, 2015, some branch courthouses within the same county may keep their records separately from the main court facilities.

As an example: California, by far the country’s most populous state, has 58 counties.  However, the “National Criminal Database” in common use today by employment screening companies, contains court records from just a handful of California courts.  Therefore, any employer in need of a proper criminal record search in California and is relying solely on a “National Criminal Record Database search”, will have little or no chance of uncovering potential criminal records, if the county of the job applicant’s residence and employment is among the majority of California county court records not contained in the database search. For a reliable result, employers need to order a best practices county courthouse in-person, hands on record search.

And most alarming, the national database is such an eclectic and random collection of court court’s records, there’s no telling what county records are not included in the database. Seriously, it’s a hit-or-miss proposition. In addition, the records that are contained in the database may, or may not be complete or updated with any regularity. This is a serious concern, because new court records are created by individual courts every day – except weekends and holidays.

Other problems associated with relying solely on database sourced criminal record information: Within the database, there may be hundreds or even thousands of common name records such as Smith, Johnson, Martin, Garcia, Anderson, Jackson, etc. etc. appearing by first and last name only. The databases seldom contain additional unique identifiers such as date of birth, driver license numbers or addresses from which screeners can narrow the search to your applicant.  Furthermore, the commercial database searches seldom provide complete case disposition/sentencing information if any disposition at all.

And then, there are criminal matters in which the court record has been sealed, expunged or where the defendant has been granted deferred sentencing and the case was modified by the court perhaps months or even years after the original record was obtained by the database company.  Simply stated, relying solely on a commercial criminal record database for your employment related hiring decisions is a recipe for hiring and legal nightmares. Either someone else’s criminal record is erroneously attributed the wrong person (your applicant), or a job applicant’s criminal history is missed entirely because it was simply not in the database. You could potentially end-up relying on an erroneous background check and hire someone that could pose a foreseeable threat to your customers or employees.

And we haven’t even discussed the possibility of outstanding arrest warrants pertaining to your job applicant. (Imagine the wasted time and money invested in filling a key position and 3 months later, your new hire is arrested on an outstanding felony arrest warrant pertaining to a case that would have been discoverable if you initiated a proper county court or state level record search.) You have little or no chance of discovering outstanding arrest warrants if you rely solely on instant database checks.

Does This Mean Proprietary Multi-Jurisdiction, Multi-State Databases Should Never be Utilized?

No! It means that these database searches should be used only as an additional or expanded search to supplement a proper in-person county courthouse record check or official government entity maintained criminal records repository.

Best practices dictates that the background company makes an independent assessment of the court jurisdictions within which your applicant has lived and worked in within the past 7-10 years or beyond.* Then, the official county criminal court records are accessed at the appropriate courthouse and checked against full names and additional unique personal identifiers, addresses and other names your applicant may have used or is/was also known as – as may be determinable.

[Note: As people may very well live in one county and work in another, it is considered important to check counties of residence along with counties of employment.  Why? Because criminal records pertaining to crimes committed in the workplace, will be found in the county where the workplace is.  This could include theft or embezzlement, selling drugs on company property or cases involving workplace violence, stalking or criminal harassment.]

Does Employer’s InfoSource Recommend Utilizing the Multi-Jurisdiction, Multi-state Criminal Records Database?

Yes! We highly recommend accessing the multi-jurisdiction, multi-state criminal record database.  It contains millions of criminal records obtained from a multitude of legitimate record sources such as criminal courts, bureau of prisons and state records repositories.  However, it is in no sense of the word “thorough” or current and should only be used in the context of its general cursory value and to expand the breadth and scope of your criminal records search and general due diligence.  Any indication of a record potentially pertaining to your job applicant, must first be verified by an actual review of the official court records from the originating court, or by accessing the designated official automated records repository maintained by court or state authorized authority.

In fact, with these proprietary databases, there is legitimate probative value and potential to find criminal records pertaining to your job applicants in jurisdictions outside of the typical counties of residence and employment.  As an example, there could be records related to criminal offences occurring while traveling, attending school or while serving the military.  Still, with an instant database search alone, there is no assurance that existing records will be discovered. And again, any record found will be first reviewed and verified by accessing the appropriate county or state level courthouse records before it can be included in a employment screening report.  The goal is to match records by unique identifiers beyond names only.  We also need to ascertain pertinent details of the criminal offense and final disposition.

Finally, employers should be skeptical if a background screening service seems to be emphasizing or relying primarily or solely on a “National Criminal Record Search” or promise a ‘same day’ or instant turnaround times.  Such services are not promoting accuracy or providing best source information – and such record searches may not stand-up to FCRA compliance requirements. These “quickie” / “instant background checks” are next to worthless and will put your company at risk – if employed as a stand-alone records search. The various lawsuits related to these fast-buck products speak volumes!

*as permissible under applicable state law.

Notice: The author is not an attorney and nothing in this Web site is offered or intended as legal advice. We always recommend that employers consult with qualified legal counsel on matters pertaining to the procurement and use of consumer reports for employment evaluation purposes and labor law in general.

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