Criminal Background Check Basics

If the basic tenet of the Hippocratic Oath Is "First, do no harm" then perhaps the first guiding principle of Human Resources Managers is "First, make no bad hiring decisions".

In that connection, the first line of defense employed by businesses to protect their employees, their assets and the public is a criminal background check.

While the cost of a reasonable criminal background check can be less than fifty dollars, most businesses know the cost of a "Bad Hire" is incalculable.

The question then always becomes "How do I conduct the best background check for the least money"?

The Basics

This is sometimes hard to believe, but there simply is no single data base that allows an employer or a background check company access to all of the criminal records in all of the states.

Even the NCIC, which is a criminal data base available only to law enforcement agencies, is not a complete data base of criminal records.

Reporting of records to the NCIC is dependent on the states or other courts forwarding the data. 

It is often not current (as much as two years behind for some states) and rarely has current disposition information.

Multi-State Criminal Background Check

This is the closest thing to a national criminal background check data base that is available to employers and has become the standard primary background check requested. The results of this report are available instantly and should always be the first report ordered.

This report includes about 80% of the criminal records from 46 states that have been reported by the three thousand-plus counties to the various state data bases.

This report usually also includes a check of the sex offender registry in most or all states. Please note that, if the sex offender failed to register, he may not show up in this records check.

Moreover, the following important data base searches are often a part of the multi-state criminal background check.

OFAC Blocked List- (Terrorist Watch List-Office Of foreign Assets Control)

OTS List- NS (Office Of Thrift Supervision)

Australian Reserve Bank Sanctions List-

I would certainly recommend that any criminal background check begin with this search, since it casts the widest net available.

State Wide Criminal Background Checks

What results can we expect when ordering criminal background checks from individual states who supply the national database? 

Compared to the multi-state criminal background check, many criminal records from forty five other states as well as a check of the offender registries are not being checked.

 The data contained is often late, incomplete, or simply not reported from the originating court.

Besides being somewhat expensive, even the primary state law enforcement agency's criminal records data is often incomplete.

We have seen many examples where employers regretted relying on the state's law enforcement agency data base.

Records that were simply not included as a part of the state law enforcement data base were easily found by plaintiff's attorneys in the county records of the employee accused of assaulting another employee or a member of the public.

They likely used the same employment application that was now a part of the proceedings and simply had the criminal records checked in the offending employee's prior counties of residence.

The theory of negligent hiring cases is "if you could have known, you should have known." 

You may be sure the employer wishes they had checked those same county records. 

Most background check companies would agree with our experience, which indicates that the quality and the content of the records from state agencies is significantly lower than for records obtained directly from the originating court records. 

Remember, the data in state repositories is second-hand information gathered from various courts and police departments statewide.  

Some states have statutes that require various criminal justice agencies to report criminal records to the state repository but you may be sure this is still not done on a complete and timely basis.

This is particularly true in cases where the record is an arrest only with no conviction. Often, even felonies and misdemeanors that have been pleaded down to much lesser charges are simply not reported by the counties at all. Nonetheless, any employer would want to know about these charges.

Many state record administrators have stated that they estimate that no more than 70 to 80 percent of all criminal data from the police and county criminal courts was actually ever reported to the state criminal record center. 

County Criminal Background Checks

No matter what other searches are ordered, we always recommend that, as a minimum, an employer add a search of the county or counties where the applicant has lived for the last several years.  The results from these searches are usually provided within 24 to 48 hours 

For the reasons outlined above, searches in those courts of origin are a critical element of any background check.

County superior or felony-level court, which is usually located in the county seat, is the most commonly searched.

This court of origin contains the records for the felony-level cases that originate in that jurisdiction. 

A manual county felony search at that location will reveal the following records:

Felony charges that were pleaded down to a misdemeanor conviction.

(except in some cases domestic court charges are never reported if probation terms are satisfactorily completed)

Felony charges that resulted in a felony conviction and bench warrants issued by that court.

Cases that are still pending final action for all cases and convictions that have not been sealed or expunged.

One aspect of the criminal justice system that is overlooked to the detriment of job applicants and employers alike is the true nature of the crime someone is charged with.

When making an arrest, officers are trained to file the most serious charges possible.

If an officer has any discretion regarding whether an offense is classified as a felony or misdemeanor, they will almost always charge for the most serious felony and let the courts and the defendant deal with it. 

As a result of this practice, many more cases wind up in the felony courts, affording reasonable grounds for plea-bargaining to avoid lengthy and expensive trials. 

This is the way many felony cases end up as misdemeanor rather than felony convictions.

When viewing an applicant’s criminal charges, always keep in mind the propensity of law enforcement to file the most serious charges possible.  While this practice may be convenient for the court system, it is not always just or fair to the person being arrested.

For example, take the case of two young brothers fighting.  One is eighteen years old and the other is seventeen years old.  In this case, the eighteen year old was charged with “assault on a minor”, a felony.  Just reading the charges cast a very negative light on this applicant, since no mention is made of the details surrounding his arrest.

Another actual example might be someone charged with “felony public discharge of a firearm”.  No mention is made that the event occurred in celebration of New Year’s Eve.  While the practice of firing a gun in celebration of an event is not a good idea, it is not the picture that comes to mind when one reads just the charge.

Still another case we saw concerned a man charged with burglary. What was unknown from the arrest charges was that the person actually owned the apartment he was charged with burglarizing, but he had entered it without notice or permission from the tenant.

Up-to-Date information

The Fair Credit Reporting Act requires that, before information may be used adversely in employment decisions, it must be verified as the most up-to-date and recent information available. Clearly, a county criminal background search in one or more counties is the only possible way to comply with this requirement.

Even the FBI web site says "A record provided to the subject for personal review contains only information maintained by the CJIS Division and may lack dispositional data and/or arrest records that are maintained only at the state level.

http://www.fbi.gov/hq/cjisd/backgroundchk.htm?cm_sp=ExternalLink-_-Federal-_-DOJ

Conclusion

While background checks have become a routine part of the hiring process, the importance of a quality criminal background check should never be underestimated.

A company’s future is in its employees’ past

Larry

www.national-employment-screening.com

National Employment Screening, LLC

5700 Memorial Highway, Tampa, Florida 33615

Phone:  (800) 459-3010

Fax:      (305) 852-6010

Email:   info#national-employment-screening.com 

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