Aim of Law Enforcement Background Checks
Employers conduct law enforcement background checks to determine if a potential new employee has a criminal history, as well as other important history that may be relevant to job responsibilities. With the increasing accessibility of these types of records, it has become standard procedure for many employers to have this type of check done as part of their standard hiring procedure. For safety and security reasons, some employers have determined that they need this type of information in order to make a fully informed hiring decision.
A record of a past conviction can be a major problem for many jobs that require the employee to deal with money , valuables, personal information, or sensitive circumstances. For some jobs, an applicant with a criminal history related to violence or sexual assault can by disqualified if that applicant cannot work with injured persons or children. Depending on the job, this type of background check can be expressly required by law, such as those requiring the handling of the funds, drugs, or other sensitive materials. Healthcare employers, educational institutions, childcare providers, and financial service providers will often look closely at the criminal history of an applicant to ensure safety and security among their patients, students, or clients.
Legal Requirements and Regulations
Employers must consider legal guidelines and compliance measures when performing law enforcement background checks. The applicant for employment must give consent in writing for the employer to acquire such information. An applicant’s rights are well protected under the FCRA and similar state laws such as the California Investigative Consumer Reporting Agencies Act (ICRAA).
The FCRA is a federal law that regulates and supervises the collection, dissemination, and use of consumer information. The act itself includes an outline of rules that both informs and protects applicants during the background checking process. When a candidate signs Disclosure and Authorization forms, the applicant is detailing the consent and eligibility for the employer, background checker company, and any provider covering the standards outlined in the FCRA and state-adhering acts.
The form must include language notifying the applicant that their background will be checked for information related to criminal records, credit, driving records, and other topics as an attempt to provide the employer with adequate information to make appropriate hiring decisions. The applicant may be asked to describe where they have lived in the last ten years, to specify all names they may have used during that period, and to provide any further information the employer feels is relevant to the task.
Federal and state courts continue to establish and clarify what employers should disclose to applicants when checking background or hiring practice. In response to these court rulings, the FCRA has standard rules it has adopted over the past several decades. The Federal Trade Commission website provides further guidelines for compliance and other information about the FCRA.
Employers must follow the rules set forth in the FCRA and should also keep in mind the rules of the Equal Employment Opportunity Commission (EEOC) and Title VII of the Civil Rights Act of 1964, as well as Section 703 of the Title VII. The EEOC’s Criminal Record Guidance instructs employers to individually evaluate criminal records of applicants and ensures that the employer is in compliance with applicable law. The Equal Employment Opportunity Commission (EEOC) released guidance for employers using criminal records in employment decisions, stating: "a criminal record screen may disproportionately affect individuals of certain races and national origins. It also may have a disparate impact on young people and can exclude individuals who were convicted as juveniles." The guidance document goes on to detail employers’ obligations in working with criminal records.
According to the EEOC, employers are not necessarily precluded from excluding convicted individuals from employment. However, the use of automatic exclusions based on criminal records does not guarantee a legitimate business need. Employers should take into account whether the nature or severity of the crime fundamentally relates to the position in question. In addition, the employer should review available data regarding the position’s employment and criminal history.
Interestingly, the confirmation of adverse action after the use of a criminal background check can interfere with hiring practices. Checkr Inc., a third-party vendor that helps companies vet job applicants, was hit with a class-action lawsuit in 2015 in connection with a Care.com’s decision in May 2014 to dismiss consumers who had a felony. The plaintiffs in the putative class action alleged they were denied the opportunity to explain or appeal Care.com’s decision.
Factors of an Employment Background Check
In addition to the database search, many law enforcement agencies may conduct a national criminal index database search. The information in a criminal history, generally speaking, is basic – name, date of birth, physical description, arrest date and location, nature of charge, and disposition. A criminal history will often cover several or even many years. However, with a simple index search, only the information listed above and an arrest date would be provided. Thus, you may still need to do some additional investigation if you receive a criminal record in an index search.
Driving History
Many law enforcement agencies will include a driving history in their background investigation. Sometimes these records can be obtained by simply calling the DMV, but other times a CDLIS query will be included, given that a CDLIS query is so simple to conduct. CDLIS is short for Commercial Driver’s License Information System, which is a database of driver’s license information that includes information from all 50 states. A CDLIS query will show a record within the last 10 years that can potentially be expanded. The types of records available include driver’s license status, type, issue date, and expiration date, general information about convictions (date, jurisdiction, severity, violations), problem driving history records, and accident records. These records are verified by contacting the individual state DMV.
Identity Verification
A thorough law enforcement record check must include verification of the identity of the applicant. Verifying information usually includes obtaining social security number information and performing a name search and Social Security number trace. A trace is generally done at the time of the criminal history search. A social security number trace is an automatic by-product of a social security number verification and will yield valuable information about where an individual has lived and how long he or she has lived there. It will also reveal other names that were associated with the individual and whether the individual has any gaps in his or her living history. This information will allow a reporter to determine which names should be used in your criminal history search.
Criminal Check and Search Considerations
When doing a criminal background check, you should keep in mind that not all courts furnish criminal histories and not all courts require a fingerprint. In most cases, records obtained through a name search will be sufficient, but in a few, usually very rare circumstances, courts will require fingerprints to be obtained.
Not only may you be required to provide a fingerprint in the rare circumstance where a court requires it, but also, in some jurisdictions, a fingerprint is required every time you check a criminal record. For example, if you want to verify whether a criminal record that you find in a state criminal index is identical to the one you found through a name search, or if you perform a federal criminal history search, you may be required to obtain a fingerprint. Fingerprints usually need to be taken by a law enforcement official, such as a police department officer or sheriff’s office employee. Often, the imprints need to be electronically submitted because some agencies require that fingerprints be submitted electronically.
How to Get Ready for an Employment Background Check
Most employers will not run their own checks but rather will outsource them to an investigating agency, typically known as a "Consumer Reporting Agency" (CRA). Such agencies usually have websites containing sample application forms as well as the forms themselves. These applications request information from an applicant’s prior employers and schools. The CRA then submits the applications to such prior employers and schools to obtain records about the applicant’s hiring history, termination history, reasons for termination, failures to hire, educational records, and related information. The applicant usually gives the employer written permission to make such requests. Employers generally do not need individual permission requests for each school, employer, or other source.
Although job applicants do not need to contact their previous employers and schools directly, they should ensure that the CRA completing the background check obtains all relevant records. Applicants should:
Most CRAs will send the applicant a copy of the records obtained. If this is not the case, it is wise for individuals to request copies of their background reports. An applicant should contact the CRA for copies of the applicant’s background check if:
If the applicant has a criminal record, the nature of the record may present a problem with the agency to which he or she is applying. While a criminal conviction does not necessarily disqualify someone from a job, it may raise red flags for some employers. Applicants should be prepared to explain the circumstances and how they relate to the position in question. When completing the background check application, applicants can note that they are willing to discuss their record in a separate meeting.
On the application, the applicant should treat any arrest not resulting in a conviction as an arrest unless the employer specifically asks for only the information concerning convictions only. An arrest may necessarily reflect on an applicant’s judgment and need to be disclosed. Claims of innocence are not relevant to the issue of whether an arrest should be disclosed.
The applicant should also examine his or her consumer credit report. While not specifically required by the statute, creditors who regularly check credit history (e.g., banks) must verify and check the accuracy of any reports provided to them, and this would include erroneous criminal background information supplied to them in error by a CRA. It would therefore be important to bring any inaccuracies to the creditor’s attention at the time they disclose errors in an applicant’s credit history.
Effect of an Employment Background Check
Advancing technology in today’s criminal background check process has made background checks more efficient and cost effective. Applicants and employees may not understand that information found by law enforcement and other agencies can influence employment decisions. Positive findings from law enforcement criminal record searches can have a positive impact on employment. Criminal background check results that show a "pass" meaning no criminal history can be used to screen an applicant for employment and then cleared records can be released to the future employers.
Negative findings report other types of information. A criminal background search by law enforcement will result in a presumptive criminal conviction where the person went before a judge and was found guilty of a crime and sentenced. A dismissal, an acquittal, or a not guilty finding is not a criminal charge. A conviction of a class A misdemeanor or a felony can be grounds under Wisconsin law for allowing the employer to reject a candidate for employment if the conviction is substantially related to the job the person is applying to do. An example is a DUI conviction with a job that requires a driver’s license search. A 2013 law (Wisconsin Statutes Section 111.321) and a 2013 Supreme Court case (Heikkinen v. State) changed the analysis of hiring where the offense involved a false name , like giving an alias or using someone else’s person information. In those cases, there is now an open factor analysis, so each party gets to argue their side of the story and tell the employer why it should hire or reject a candidate.
Another negative finding comes from deferred prosecution agreements (DPAs). The DPA is a decision by a judge that defers a criminal charge and gives the defendant a chance to prove he or she has changed his or her ways. If the criminal does well for a year, no conviction will be entered. That person will even be able to say they have never been convicted of a crime when asked about a background check. The existence of a site-based employment where there is a renewal of employment every year is one example of how an employer can work around an applicant’s deferred prosecution agreement filing.
Privacy Issues and Employee Rights
Law enforcement background checks can raise concerns regarding potential privacy implications. Conducting a law enforcement background check involves collecting personal information from various government authorities, primarily local law enforcement (police) agencies, who maintain extensive databases about such information. Criminal history information is publicly available, but that information is sometimes difficult to obtain and is not always up to date.
Employers are legally required to notify applicants and employees when they intend to obtain or have obtained a background check from a consumer reporting agency (CRA), unless the disclosure is not "practicable." A "consumer reporting agency" includes any person or entity that regularly assembles or evaluates information on consumer credit, personal character or reputation, or any other aspect relating to an individual that will be supplied to third parties.
However, employers frequently hire third-party investigative firms that conduct their own "literal" criminal records check, which is not covered by the notice requirement, because no actual CRA services are being hired. There is no federal law that directly applies this "practicable" exception to the law enforcement records context. Nevertheless, the Federal Trade Commission (FTC), has recognized that under certain circumstances a criminal history check constitutes a search for "public record information," which "may include criminal record information on criminal activity and civil judgments, as well as records relating to bankruptcy, divorce and real estate ownership." 16 C.F.R. ยง 603.2(e).
Several states have endeavored to provide their citizens with a remedy when they have been the victim of an unlawful background check. In Washington, for instance, a background check is lawful if:
The information was disclosed to a person convicted of a crime on the condition that the person would not disclose the information for any unlawful purpose and the subject of the record was given notice of the disclosure; or
The information was disclosed to investigators of a national, state, or local agency having jurisdiction.
Criminal background investigations are typically proxies for an employer’s interest in the personal integrity of their applicants and employees. For example, a prospective employer may legitimately wish to determine if an individual has a criminal record that might somehow affect his or her ability to perform the job for which he or she is being considered. The person making the decision to administer or pay for such a check must take particular care that he or she does not ignore or otherwise violate the privacy rights of the applicant or employee.
Best Practices for Employers
For law enforcement background checks, employers should apply longstanding best practices for employment background checks in general. One best practice is to employ the services of a qualified third party service. A thorough and well-qualified service provider can identify potential legal pitfalls and assist in avoiding them.
Another best practice involves transparency in communicating the purpose of a background check to applicants and employees. Many of these background check services document such communications by including them in their written consumer reports. However, employers may also incorporate such information into their hiring materials, to ensure that applicants are aware of the screening process prior to speaking with a recruiter or other hiring personnel.
Employers should advise applicants and employees that , depending on state, territorial, tribal, and local law, as well as the employer’s individual policies, a consumer reporting agency providing law enforcement background information may not issue or reissue such information for employment purposes more than once every five years.
In addition to being transparent with applicants and employees regarding the purpose of a screening, employers should be mindful of the sensitivity surrounding the information being gathered and how it is used. Employers should limit the use of such background information to job-related purposes only.
Employers should consult with legal counsel or other professionals with expertise in consumer reporting law to ensure that employment-related law enforcement background checks comply with federal, state, and local law.