Best explanation we have seen of how the background check system works…
The Myths and Realities of On-line Criminal History Databases
By Frederick G. Giles, CPP (Article first published in Loss Prevention Magazine January-February 2002
Some years ago, one of my research agents was summarily kicked out of a Kentucky court.
Fearing that he was somehow offensive or in the wrong, I called up the clerk of court to discuss the issue.
After reviewing the incident with the clerk, he responded that his court was simply too busy to respond to “all these pre-employment requests” and that he simply was not going to do it anymore.
If I needed that information, I could visit the state repository. I explained my concerns about state repositories and asked if there wasn’t a compromise solution, as these were, after all, public records.
At that point, he lost his patience and said, “Looky here”.
If you don’t like the way I run my court, here’s what you do.
First, you move yourself to this county and establish a residence.
Then, you run for this office.
Then, if you are fortunate enough to get yourself elected,” raising his voice he went on, “you can run this court anyway you want.
Until then, it is my court and I will run it the way I see fit.”
That was the end of the conversation. I suspect that I was not his first caller that day.
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The next most common type of criminal court of origin is the federal district court.
These courts hear cases involving violations of federal law. There may be only one to a state, or there may be several. These courts can be searched in person or by using a remote access. But, however they are searched, they represent a problem for the user.
Since these courts rely very heavily on fingerprint identification, it is very difficult to get anything other than a name and possible address match with tools other than fingerprints.
That said, there is no substitute for a federal district search if that search is required for a reasonable due diligence to fill a position.
Also, this search is a requirement for those employers authorized to use fingerprints, such as registered securities dealers, as the fingerprint search against the NCIC will not contain the most up to date adjudication information for a given case.
For the employer with a tighter budget, a federal district search for lower level positions, in the absence of a legal requirement or specific risk avoidance objective, may be overkill.
While it will reveal charges not found in any state search, it is likely that the applicant will be no stranger to the state courts.
8. Court Research.
For each of the sources of criminal history noted above, there is no single access method. For most, a research agent is still required to physically visit the court unless, of course, you can afford the average three-to four-week turn around via mailed requests.
Once at the court, research is performed a variety of ways. In some courts, a local public access terminal is available that can provide not only index information, but also complete case information that can be transcribed. In other courts, the public access terminal may only be a name index.
As the public may not access physical court files directly, name matches must be brought to the clerk of court staff, who will research them as time permits and provide the results when they can get to them. In other courts, searches must be done by hand in old ledger books or paper indices.
In still others, the automated case management software has been in place for less than seven years, so searches must be done using a combination of computer terminal access, old ledger books, and reliance on court services staff.
Roughly 10 percent of all searches may be done using remote access tools directly into court systems, but this does not always mean faster or cheaper.
Even aside from some of the specialized hardware or software required by some courts, there are connectivity issues and poorly designed systems that dump page after page of docket activity making it a “Where’s Waldo?” search for the actual identity, charges, and disposition data.
There are still other remote systems that serve only as pointer files and still require the services of a live agent and court services staff to complete the research.
Adding another level of complexity to all the above is the fact that each state has its own, unique criminal code, and each court within each state may have its own procedures for recording and storing information.
There are about 3,200 counties in the U.S., and about 10,000 different courts.
Some days it seems that all they have in common is that they are understaffed, overworked, and uninterested in your problems.
9. Building a Background Check Strategy
With an understanding of the challenges of both on-line and court research, how does one determine the appropriate scope of or a criminal history background?
To answer that question, there is one more concept that must be understood.
That is the concept I call “Managed Risk and Criminal Histories:”
Hiring employees creates potential risk to other employees, the public, and to the assets of the employer. Past behavior is one of the best predictors of future behavior.
Any position being filled must be evaluated to understand those criminal behaviors that add risk.
Because there is no useful single nationwide repository of criminal history and since it is unreasonable to conduct a search in every court in the country, a background program should be designed to cover both a reasonable period of time and a reasonable geographic scope to manage and mitigate those risks.
Simply stated: You can’t do it all, so what can you do?
I am going to set down some guidelines based on the experience of clients around the country.
10. Take these guidelines and discuss them with legal counsel to see how they may best work within the context of your company and your employees.
11. A Complete Application.
Every criminal history check should begin with a complete application.
This cannot be emphasized enough.
That application should contain a statement of truth in which the applicant acknowledges that all information is true and complete,
without omissions, understanding that the employer has the right to choose not to hire or to terminate if they find out otherwise.
This application should ask the applicant to self-report job-related convictions.
(There are numerous state and federal laws addressing this section that can not be address here. Once again, consult with counsel.)
Be sure that the application has sufficient address history to cover the required depth of background discussed below.
Also be sure that if you are using a third party background company, you have a separate release and notification form signed by the applicant that meets Fair Credit Reporting Act (FCRA) standards.
(Note that some courts require date of birth for an identifier, especially for common names, and the release is a good place to capture that and other identifying data).
12. Social Security Check.
The next required tool is the social security number check done through one of the background check sources.
This check serves three important functions.
First, it may help reveal a legal name change when additional names are associated with a number.
Second, it serves to raise a red flag if (a) the applicant’s name is not associated with the entered number, (b) the number was issued by an unaccounted for state, or (c) the date of issue does not seem to match the applicant’s age.
Third, it will reveal up to a seven-year residence address history.
This will be crucial in identifying courts to be searched that would otherwise be missed should the applicant have selective memory.
13. Criminal History Check.
Now you would use a position risk analysis to decide how wide and how deep the search needs to be.
The how wide is simply how many years of employment or residence addresses do you need to cover.
The how deep is how many years back do you need to go in the court that you are searching.
The standard for depth of search in a court is seven years back.
Unless one has specific licensing or regulatory requirements to do otherwise, this should be your baseline.
It is the how wide that will vary by position.
A very simple rule of thumb is to start with the current county of residence as the most basic and minimum search, and add to that as responsibility and risk increases.
Taking our rule of thumb, the following are reasonable guidelines for criminal history checks, along with the number of courts for budgeting.
(When budgeting, remember that about 10 percent of courts charge statutory access fees ranging from $5 to $26.
Your average cost of fees will vary depending on your applicant pool demographics, but in a true nationwide distribution, you would be safe planning $2 per search for access fees. Fees in New York state are especially high, and Los Angeles courts are $5 per name per search.)
14.-Entry level position,
no cash handling, very little or no customer contact, well supervised–A check of felonies and those misdemeanors indexed at the court
of current county of residence, seven years deep. Average 1 court searched.
14 A. -Entry level position,
no cash handling, customer contact, well supervised–A check of felonies and those misdemeanors indexed at the court(s) covering
three years of residence checked, seven years deep.
Average 1.5 courts searched.
14 B. Entry level position,
cash handling, customer contact, well supervised–A check of felonies and those misdemeanors indexed at the court(s) covering five
years of residence checked, seven years deep. Average 2 courts searched.
15. Mid-management or key holder position–
A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked seven years deep. Average 2.7 courts searched.
16. Unsupervised customer contact,
such as delivery or repair person–A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked seven years deep, plus a sex offender’s registry check. Average 2.7 courts searched, plus the state registry.
17. Upper-level management and purchasing positions–
A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked in both county and federal district courts at least seven years deep. Average 4 courts searched.
Those hiring in metropolitan areas covering many counties might consider adding either additional contiguous counties or statewide checks, if available. Atlanta is one of the best examples of a city touching many counties, but it also has one of the hardest to use statewide searches.
18. Misdemeanor Checks.
Not specifically mentioned in the search guidelines are the addition of misdemeanor checks. Law will require them for certain positions.
For example, before a security company can arm a security officer, they must search to ensure that there is not a misdemeanor conviction for domestic violence.
Beyond legal requirements, some employers require a separate misdemeanor check of residences because they are concerned about behaviors that pose risks such as misdemeanor assaults, substance abuse, and theft convictions.
If your budget can support additional separate searches, by all means, add them to your search package.
You will add roughly two-tenths of a search to each felony search requested.
You may wish to evaluate the targeted misdemeanor search by doing a retrospective study on the results from those courts, not only in terms of hits, but also in terms of employment decisions made. You may find that, as so eloquently put by a Florida client: “The juice is not worth the squeeze.”
Be prepared with complete identifying information when requesting your search, both to improve accuracy and to improve turn around time.
Typical requirements for a search are full name, date of birth, social security number, maiden name and/or aliases, race, and sex.
Puerto Rico searches require the mother’s maiden name, and some courts, like Los Angeles, use driver’s license as a good identifier.
A current home address will be required for those repositories that automatically notify applicants of the results of the search, including Oregon, Kentucky, and North Dakota.
19. Where Do Criminals Commit Crimes?
There is much discussion concerning geographic scope. There are those who recommend searching courts in both counties of residence and employment for the specified scope, as well as any contiguous counties.
While a risk management argument can be made supporting a broader scope for some positions or in some metropolitan areas that actually cross several counties, two interesting studies suggest that doing more than counties of residence is overkill for most positions.
“The Prisoner’s Antecedents” was a study conducted by the Census Bureau and published in 1929. In that study, 73 percent of those entering prison nationwide committed their offenses in their county of residence. In 1997, the Bureau of Justice Statistics conducted a similar, as yet unpublished, study and found that eight out of ten inmates committed their crimes in the their own county.
This did vary somewhat by type of crime, with DWI and kidnap least likely to be committed at home. But they are also the most likely crimes to be found in a search other than a county search, that is, a Department of Motor Vehicle and a federal district check, respectively.
Even with 75 years between studies and an arguably more mobile society today, these studies reveal that in the context of managed risk, a search for criminal history in counties of residence is by far the most productive framework.
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20. From Myths to Realities
This article represents the realities of accessing criminal history in today’s environment.
Of course, times change and courts will continue to evolve. How quickly if ever criminal history will become available on-line is difficult to predict.
Exercise caution and evaluate on-line opportunities so that you understand the data source and its limitations.
We can expect more courts to offer remote access solutions to address their own needs of handling the growing volume of requests,
but remember that not all on-line solutions or new case management systems pick up the minimum seven-year depth of history.With this knowledge, your pre-employment screening program can be designed to provide a reasonable hedge against the suits de jour of negligent hiring, retention, and supervision. There is no Lucy in the sky with data, but the diamonds of information to be mined can help you and your company protect employees and assets by matching each qualified applicant to the right job.
Frederick G. Giles, CPP, is president of The Official Provider’s Source, a public records retrieval provider to background screening companies.
He is a recognized authority in the background and pre-screening arena.