Drawbacks of Criminal Record Databases

small business background check risks

Some background screening firms offer a so-called “National Criminal Database Search,” an “Instant National Criminal Search,” or some other similar  name that falsely implies an employer  is  getting a great deal of protection. Unfortunately, nothing could be further from the truth.

For private employers, there is simply no such thing as a “national” criminal search. Any so-called “national” criminal search is in reality a multi-state/multi-jurisdictional criminal records database check of those jurisdictions that make their data available.

When used correctly, this search can provide value for an employer by helping background screening firms find additional places to search for criminal records. However, employers need to understand that these searches are NOT the same as doing a criminal record check and such searches if not understood can badly mislead and even hurt employers. Here is the Good, the Bad, and the Ugly about these searches:

The Good

BackgroundPro offers a comprehensive search for small businesses. Criminal record databases are valuable because they cover a much larger geographical area than traditional criminal record searches run at the county courthouses that may be relevant to the applicant’s history. Since there are more than 3,200 jurisdictions in America, not all county courts can be checked. By casting a much wider net, a criminal record database search may pick up information that would otherwise be missed in a single county court search. BackgrondPro engages in two best practices when it comes to this database:

  • BackgroundPro clearly informs employers that these checks have limitations and not all criminal records will be located.  That is why BackgroundPro never offers to provide a database check as a standalone product.  It MUST be purchased in conjunction with at least a check of the applicant’s county of residence at a minimum.
  • If BackgroundPro finds a potential criminal record, we have adopted as a best practice that all criminal record information from a commercial criminal databases must be confirmed as being accurate and up to date before being provided to an employer since such information is subject to errors. BackgroundPro verifies the information directly with the reporting county court to ensure that employment decisions are based on accurate and up-to-date information. The goal is to use reasonable procedures to maximize the accuracy of the information reported. That means, among other things, BackgroundPro checks to see if the case belongs to your applicant, if the information is accurate and up to date, and if there have been any judicial proceedings that make the record not reportable under state law.

What this means is that BackgrondPro only uses results from criminal record databases as indicators of possible records by providing possible places to look for relevant and reportable records.

The Bad

These criminal records database searches are often incorrectly called a “national criminal records search.” While the information sourced from criminal record databases is from public records information from all 50 states, the quality varies widely. The information from one state may be comprehensive and up to date while information from a neighboring state may be inaccurate. The most common reason for database errors includes incomplete records, name variations, untimely information, or records that have not been even updated:

  • Incomplete Records: Criminal records databases can be incomplete because they do not contain records from all states and jurisdictions, the available records may be incomplete or lack sufficient detail about the offense, or contain only felonies or offenses in which a state corrections unit was involved.
  • Name Variations: An applicant may have been arrested under a different first name or some variation of first and middle name. A female applicant may have a record under a previous last name. Also, it is possible to find two or more people with the same first and last name who also share other identifiers.
  • Untimely Information: The records in a database may be stale or may not go back far enough in time. Even after a vendor receives new data, there can be lag time before that data is uploaded into the database. As a result, the most recent offenses are the least likely to come up in a database search.
  • Records Not Updated:  In most states, there are procedures and processes for individuals with a criminal record to go back to court and seek some sort of judicial set aside so that they can honesty tell an employer they have no record. Depending upon the state, these procedures may be called an expungement, pardon, deferred adjudication, or some the process where the applicant can honestly and legally report they do not have a criminal record.

As a result, the appearance of a person’s name on these non-governmental aggregated databases is not an indication that the person is a criminal. BackgroundPro verifies every potentially relevant criminal “hit” by reviewing the actual county court records before including any information in a background check report. Likewise, a lack of a name match in a criminal record database search is not the same as a person being “cleared.” Assuming criminal record database searches are always correct can lead to “false positive” and “false negative” results:

  • A “false positive” is when there is a criminal match with the person being checked but further research reveals it is not the same person. A “false positive” can also occur when a consumer has gone back to court, and has revived a judicial set-aside of their case, such as an expungement, deferred adjudication or some other judicial proceeding where a person’s conviction has been set aside or no longer can be used.
  • A “false negative” is when there is no criminal match with the person being checked but that person turns out to be indeed a criminal.

The Ugly

When an employer is not told the true nature of theses searches, an employer may falsely rely upon such a search to believe that they have conducted a real criminal background check, when in fact, for all the reasons mentioned above, they have not.  Worse, the incorrect use of these databases can cause employers NOT to hire qualified candidates or, conversely, hire someone with a criminal record that was not found, denying the employer the chance to make a decision  based upon facts.

In addition, while there are numerous “national,” “instant,” and “do it yourself” criminal record searches using databases used for background checks on the Internet, these criminal databases are not an official government collection of criminal records or the Federal Bureau of Investigation (FBI) criminal database called the National Crime Information Center (NCIC). Instead, the criminal record information is gathered through a variety of available sources from commercial aggregators.  This leads to substantial issues as to completeness, coverage, and accuracy.

The danger of “instant” background checks based on databases was demonstrated by a class action settlement involving the use of databases in 2013. Two background check firms agreed to pay $18.6 million to settle three class action lawsuits alleging violations of the federal Fair Credit Reporting Act (FCRA) for “failing to take reasonable measures to ensure the accuracy of background check report provided to prospective employers” and “violating the FCRA by providing incorrect, outdated, or incomplete information to potential employers.”

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