Background checks are often misunderstood and can provide a false sense of security.
(Mansfield, MA) – It’s 3:07 pm on a Friday afternoon before a holiday weekend. Just as you allow yourself to consider the forecast for the long weekend ahead, the phone rings. Before you can even say your name, you hear the heavy breaths of panic on the other end of the line. There has been an incident with one of your employees and he has just been taken out of the building in handcuffs.
So, what goes through your head immediately ? What happened? Is everybody okay? Is this a mistake?
In the following hour you learn that the incident involved your employee raping a female client. Your mind races as you wonder, who is this guy? Didn’t we do a background check on him? How did we miss this one?
The answers begin to become clear as your research reveals that the employee’s background check report shows no criminal record was found or listed.
At 5:25 pm your phone rings again. This time, it’s a local television reporter asking about the incident at your location and if you have any comment about the history of the convicted felon and registered sex offender working for your company. Your mind screams, “The WHAT?”
Your next call is to your background screening vendor to find out how and why this could have happened. Why do you conduct background checks if they aren’t going to protect your employees and your company against these situations?
The Reality
The short answer is there is nothing you can do to surface every, or even any, criminal record conviction a potential employee may have. Despite what you see on television, a criminal history search involves complex layers of pre-determined methodologies and resources in order to apply the best techniques to yield the best results for each search.
Buyer Beware
In the age of technology, it is tempting to search electronic databases that provide inexpensive and instant results. Products that are marketed as “comprehensive national criminal checks” and “access to over 300 million criminal records” for less than $20.00 are alluring to employers that are looking to cut costs. Used properly, national criminal searches are a good supplement to employment screening programs, however, these databases can also come with potential pitfalls.
Unless you are conducting a criminal record check through the Federal Bureau of Investigations (FBI), National Crime Information Center (NCIC), Criminal Justice Information Systems (CJIS) or some authorized agency to perform a national criminal record search generally conducted using fingerprints, there is no government endorsed national criminal check that is easily accessible online and offered to employers and the general public. There are, however, privately owned criminal record database searches available through wholesalers or resellers of such information. Be careful to distinguish between the two.
Privately owned criminal record database searches typically search by name only and can surface a number of potential matches. When you receive these reports, it is imperative that you research whether the name listed is your applicant or not. Why? You first want to know if this is your applicant before you take any adverse action. According to a 2007 Special Report published by the Bureau of Justice Statistics, 6.4 million U.S. households reported one or more types of identity theft. Additionally, if you are outsourcing your screening to a Consumer Reporting Agency (CRA) and you may not hire the applicant based on the information in the report provided, you are required under the Federal Fair Credit Reporting Act (FCRA) to give the consumer opportunity to dispute the information contained in his or her report. Conversely, ignoring potentially adverse information and hiring the candidate without verifying it sets
up a potentially dangerous liability under negligent hiring. Negligent hiring is when an employer can be held liable for the acts of their employees when they knew or should have known that the employee was unfit for a particular position. The Bureau of Labor Statistics reported that employers lose 79% of negligent hiring lawsuits and the average jury award in employment-related lawsuits exceeds $1.6 million. According to the Workplace Violence Research Institute, the average out-of-court settlement is $500,000.00.
Criminal searches at the county court level are public record and the best source for up-to-date criminal record information. Unfortunately, this information is generally limited to records in a single county jurisdiction and will not surface information from other jurisdictions. Some states may require additional criminal record searches at the district, municipal and/or lower court level. Criminal searches conducted at the court level, although not instant, provide the most accurate information for matching identifiers, uncovering active warrants and disposition information and detail.
Many states offer comprehensive statewide criminal record repositories that are accessible and generally provide compiled criminal record information from across the state. It is imperative that a statewide database be tested against court level searches to ensure accuracy before an employer and/or screening vendor utilizes a statewide criminal record database in lieu of court level searches. Either way, court level searches should always supplement any statewide criminal record surfaced.
Statewide criminal record repositories vary by state and employers must be aware of any statutory requirements or regulations to utilize a specific statewide repository, such as criminal searches on candidates that will work with
vulnerable populations, or any requirement or interpretation of regulation to employ only court level criminal record searches. In some cases, specialized, release forms and/or notarization may be required before a state will process a statewide criminal record search. Some states will require an employer and the screening vendor agent (if applicable) to undergo an in-depth certification process before criminal record information will be released. These states are typically referred to as “close record states.”
An assessment of each state’s source and process must be evaluated before an employer can reasonably defend or promote a screening program’s methodologies. If an employer or screening vendor will or will not offer statewide criminal record searches in specific states, this should be addressed at the outset to avoid potential problems that may arise because of it.
Another level of criminal record searches to consider is at the federal level. This is a search of the U.S. District Courts either by onsite record searches or electronic access. Electronic searches (for federal convictions only) can be conducted nationally, by state or per U.S. District Court. Federal searches generally require additional research as they contain limited identifier information so broadening the search scope to a national search can add layers of research to find and match identifiers. Federal searches can also include the U.S. Court of Appeals. It is important that employers understand and agree with the type and source used in a federal criminal record search.
Sex offender registry searches should always be included as part of the criminal record search when a candidate will care for, potentially interact with or even have access to vulnerable population. In-home workers, contractors and sub-contractors should also be checked against the sex offender registry. According to a 2006 CBS Report, Mississippi officials estimate that 2,000 sex offenders relocated across the country in the wake of Hurricane Katrina. Many of them have failed to register in the states in which they now live. Be aware that sex offenders can be listed on a registry with no criminal history indicated on a background check. Employers should consult state laws on utilizing sex offender registry information. Some cities and states have passed legislation to limit the use of sex offender searches for employment purposes unless the candidate will work with an at-risk population.
Check and Balance
How do you know that the names and addresses provided by the applicant are correct? After all, those are the names you’ll be searching in the jurisdictions they provided as their address(es). Suppose the applicant did not fully disclose all of his or her addresses and/or names suspecting that you might actually find the criminal conviction(s) they are trying to hide. Most screening vendors will use a Social Security Trace or Address Verification search as part of the criminal record search. Note that the Social Security Trace does not integrate with or search any master file list of Social Security Administration (SSA). The Social Security Trace/Address Verification is an intelligence tool sourced through database and/or Credit Bureau information that identifies alias names and/or previous addresses associated with the provided Social Security Number (SSN). It is used to identify possible names or addresses that
should be searched as part of the criminal record search. Employers should fully understand the procedure their vendor (if applicable) uses as it relates to the Social Security Trace.
The Look Back Period
The next step is to define the look back period of the criminal search. How far back should your criminal search extend? Are you searching for criminal records using the current address of the potential candidate? This search scope works if the candidate has resided at this address for some length of time but let’s consider that your candidate just moved to this address six months ago. How comfortable are you trusting that this candidate has no incidents in jurisdictions in which they previously resided? Extending searches to previous addresses is a critical element in conducting criminal record searches. Ideally, your search should extend as much as necessary to surface any patterns of behavior or underlying conduct. The industry standard is seven years, however, this can vary in regulated industries or by statute. Some regulated industries require that the search scope extend back to the age of adulthood.
The look back period is the timeframe used to identify all addresses in which the candidate, at a minimum, has resided, for example, in the past seven years. All levels of the criminal record search should be conducted in accordance with the established look back period including county, statewide (if available), federal, sex offender searches and national criminal database (if applicable). Each court, state database and federal search maintains criminal record information for varying lengths of time. A criminal record search can yield criminal conviction information that is much older than seven years.
Where to Search
At a minimum, criminal record searches should search the jurisdictions where the candidate has resided for the look back period, however, many employers extend the scope to include employment jurisdictions as well as addresses where the candidate has attended school. Broadening the search to include additional jurisdictions can help to identify criminal records where the applicant has established a nexus.
Looking at Names
A key element in a background screening program is searching alias names. Alias names can include maiden names, previous names or names your applicant may otherwise be known as. At a minimum, screening programs should search the current provided name of a candidate, however, it is important to note that failing to search maiden, alias or other surfaced names creates a major gap in surfacing criminal record information. In some cases, the candidate will disclose an additional name on an employment application or release form but the employer or screening vendor does not conduct a criminal record search on the provided name because the methodology is to search current name only. This protocol must be addressed in every program. Some questions to apply to your own program include: Does the criminal record search automatically search every alias name surfaced on the Social Security Trace or must a separate request be
made? How many names does the criminal record search allow? Are there additional costs for running alias names? If so, after how many?
Consistency
Employers will want to ensure the search methodologies and scope are consistent for each applicant at least across job function. If you’re conducting a criminal record search at the county and/or statewide level, federal level and sex offender registry search in all jurisdictions where the applicant has resided for the past seven years searching all names provided and surfaced through the Social Security Trace, this methodology and scope should be applied for all candidates within this job function.
Back to Reality
The scenario presented above is unfortunately not fiction. When an employee was hired to work as an unsupervised sitter in a private assisted living facility in Colleyville, Texas, he lasted just weeks before he allegedly raped a 77-year old Alzheimer patient. It wasn’t long before the company learned that this employee had a history of violence and sexual assault. The stunning revelation was followed by a negligence lawsuit.
Applying the protocols we’ve identified above, there were a number of issues that occurred during this background check:
Q: What sources were used as part of the criminal record search?
A: The company used a privately owned criminal database search only.
Q: Was a Social Security Trace used as part of the criminal record search to identify possible alias names and/or previous addresses associated with the provided SSN?
A: Yes. The company did run a Social Security Trace. This employee had an alias name that surfaced on the background check report.
Q: Was there a comprehensive statewide criminal record repository available but not used?
A: Yes. Texas does offer a Criminal history conviction search of public records through the Department of Public Safety’s Computerized Criminal History System (CHS) but the company conducted a privately owned database search only. Note: It is recommended in Texas that county court searches also be conducted to supplement CHS. County court search in this case could have revealed that this employee (under an alias name) spent 11� years in prison following a conviction of aggravated sexual assault of a female child.
Q: Did the criminal record search look back period extend to previous addresses?
A: No. The company used a criminal database search only.
Q: Did the criminal record search include a direct sex offender registry search that also extended a look back period to include previous addresses?
A: No. Had the company checked the Texas Department of Public Safety Sex Offender Registry, they would have seen their employee listed as a registered sex offender.
Summary
The U.S. Bureau of Labor Statistics reports that there were more than 7,000 occupational homicides nationwide during the relatively stable economic period of 1997-2007. Statistics will reflect the effect of our current economic climate during the next measured report. With this in mind, many employers will experience the unfortunate reality of workplace violence. Just as there is no way to guarantee a candidate has no criminal record, employers cannot control every aspect of every employees’ actions. Even background checks cannot eliminate the chance of some unforeseen and unfortunate incidents. However, with the right safeguards in place, employers can considerably reduce the risk.
It is ultimately an employer’s responsibility to understand their screening program’s sources, search methodologies, and scope to reduce risk. Conducting background checks supported by the due diligence of the screening program’s methodologies can significantly help employers in defending liability claims and respond positively with best business practices to the court of public opinion. Understanding vulnerabilities in a criminal history screening program can help employers drastically reduce their exposure but only if they know where and what they are. It is best to address these questions well in advance of the startling phone call on Friday at 3:00 pm.
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ABOUT CREATIVE SERVICES, INC.
Creative Services, Inc. (CSI) is a recognized leader in the development, implementation and monitoring of comprehensive background screening and drug testing programs for organizations ranging from small businesses to multinational Fortune 500 companies. CSI maintains its exceptional reputation through providing quality service in the areas of employment screening and security consulting to government agencies, private companies and publicly held corporations since 1976. As a company with nearly three decades of national and international experience providing diverse services to a wide range of clients, CSI delivers quality screening solutions at competitive prices.
Media Contact: Kellie O’Shea
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