Caveat Emptor: The Myth of the “Permanent Record”

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Conducting a Criminal Record Search in the Real World

Remember the innocence of childhood? The world was simple, with clear divisions between good and evil. Behavior was influenced by the perceived rewards and threats of imaginary beings such as Santa Claus or the Boogie Man. When we reached school age and crossed the line of acceptable behavior we were quickly introduced to the concept of the “Permanent Record,” which would have all sorts of implications on the rest of our lives if we weren’t diligent caretakers of it. At varying points in our maturation, we all learned that there were logical, scientific explanations for most of these fantastic imaginary childhood notions.

With the advent of technology and the Internet, the concept of the “Permanent Record” has been reborn among adults, based primarily on the existence of many low-cost, instant background checks. A quick visit to any online search engine will reveal dozens of background check vendors advertising “proprietary databases” filled with “millions of criminal records” covering “statewide” or “nationwide” territories with “instant results” and $10.00 price tags.

In reality, there is no national database of “Permanent Records” which can be checked to “clear” a person of previous criminal activity. There is no inclusive list of all citizens where one could look to see if the “Permanent Record” of an individual remains unblemished, giving that person the “thumbs-up” for hiring. The primary source of criminal history information is the county courthouse, and the county courthouse only keeps records on those who have violated the law within its jurisdiction. When someone breaks the law and gets caught, they are typically arrested, prosecuted, and convicted or dismissed according to the laws and procedures of one of over 10,000 courts spread among over 3,500 counties across the country.

With this many local sources of criminal records, it would be extremely challenging to assemble a comprehensive statewide or national database containing current records of every arrest, conviction, disposition, and expungement within its defined territory. Even state-sponsored criminal history repositories lack the authority to mandate that every county within their jurisdiction report to them, or to regulate the timeliness of updates for those counties that do. To think a private company’s “proprietary database” could assemble better information is dubious at best.

Think of a beach, just a small one, with each grain of sand representing a criminal arrest, conviction, disposition, or expungement, and each area of the beach representing a different area of the country. If I walk around that beach and collect random scoops of sand from several areas, I now have a repository representing records from different areas of the beach, or, the country. I can call this a nationwide repository, and the less effort I put into updating it, the less I can charge for access to information within it. However, there are many, many records from around the beach that I do not have, from all areas, and I cannot even be sure that for any given arrest record that I also have the corresponding conviction record, which may have been plead down or dismissed. There are two significant risks with this repository:

1. You hire an applicant with a “clean” record based on a statewide or nationwide criminal history check. That employee then assaults a customer or co-worker, and a history of assault exists in a former county of residence, where records were not updated to the statewide repository. Your company could be held liable for not having conducted a reasonable, FCRA-compliant criminal background check.

2. You deny employment to an applicant based on an arrest record reported by a statewide or nationwide criminal history check. The original charge has been plead down or the entire record has been expunged at the county level. The applicant could hold your company liable for not using FCRA-compliant information.

How then, do you conduct an efficient, FCRA-compliant criminal background check on a prospective employee? There is no feasible or cost-effective way to physically check every county courthouse within a state, or certainly nationwide. It would also defeat the purpose to rely solely on the applicant’s word to check only those courthouses where your applicant states he/she has lived. The best way to conduct a comprehensive, FCRA-compliant criminal history check is to obtain a 7-10 year address history through a Social Security Number Trace, and use that to identify counties the applicant has lived, worked, or gone to school in to check for criminal history at the local county level. This ensures that any record obtained is current and FCRA-compliant, and provides additional identifiers to ensure you are not pinning the rap on the wrong person based solely on a name match (which could also invite employment litigation). Statewide repositories should only be used in addition to a SSN/County search, and with a clear understanding of their limitations.

If you are subscribing to the myth that the “Permanent Record” exists by conducting statewide or nationwide database searches as your sole criminal history check on your applicants, remember: He’s making a list, and checking it twice…

Rob Thomson serves as an account executive for Cleveland-based EmployeeScreen IQ. His background is in HR payroll and benefits, and management consulting. He has an MBA from the University of Iowa. For more information on EmployeeScreen IQ, visit www.EmployeeScreen.com.

1This method is recommended by EmployeeScreen IQ, the National Association of Professional Background Screeners, and its member organizations.

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