NELP Report: FBI Fingerprint Checks Get Thumbs Down
August 1, 2013
At the end of July, the folks at the National Employment Law Project (NELP), released a new report questioning the accuracy and completeness of criminal records information in the FBI database. The report estimates that the FBI processed nearly 17 million employment background checks last year — six times more than it did a decade ago—and that as many as 600,000 of those reports contain incomplete or inaccurate information.
NELP is grinding the axe on behalf of workers who are denied jobs based on what it believes is incomplete and inaccurate information in the FBI fingerprint screening database. The organization says that state and federal laws that require FBI background checks spiked after 9/11, and now more employers have no choice in the matter—they are required to run a fingerprint check though the FBI database. If NELP is right, approximately 1.8 million workers a year are subject to FBI background checks that include faulty or incomplete information, and 600,000 of those workers may be prejudiced in their job search based on faulty FBI reports.
I actually agree with NELP on this one. My blog post “What’s in a Database” from the April issue of BTW details the glaring problems within an FBI background check—primarily the lack of consistent and accurate updates from the state courts. A 2006 report issued by the U.S. Attorney General estimating that the FBI’s Interstate Identification Index system is “missing final disposition information for approximately 50 percent of its records.” That’s a problem, since an arrest without a disposition does not tell the whole story for an applicant whose case was later dismissed or who was acquitted. NELP takes its argument one step further—alleging that the reliance on FBI records is having a disparate impact on minorities—specifically blacks and Latinos.
The good news for job applicants is that an FBI record must have a fingerprint associated with it. The fingerprint prevents misidentification of every John and Jane Smith who might be on file. But unfortunately, fingerprints aren’t associated with all criminal records indexed at county or state repositories. Lots of records have no fingerprints, and they never make it into the database. To complicate matters, while all states currently participate in submitting some records to the FBI, criminal record reporting is extremely irregular across counties and states.
Until the events of 9/11, the jobs that required an FBI fingerprint background were mostly government jobs requiring security clearance. The new wave of mandatory FBI background checks includes all types of workers—from building custodians to health care workers to professionals. As the use of the FBI database has spread, its records have become, in NELP’s words, “tarnished.”
So what’s the answer? This is where NELP and I start to part ways (I knew it couldn’t last).
Employers should have options
Laws that require an FBI fingerprint seriously limit an employer’s options. They dictate the use of a source that is admittedly inferior and incomplete. On the other hand, a background check from a reputable private company will search all available sources. A CRA is required, by law, to determine the final dispositions of cases before reporting them. While I agree with NELP’s conclusion that the FBI needs to get its act together and improve the quality of its database, employers should, at the same time, have the option to use private companies with a proven record for accuracy and complete information.
FCRA consumer protections already exist
The NELP report advocates for new consumer protection laws for applicants who are the victims of incomplete and inaccurate FBI reports. However, if employers were able to use private companies, those job applicants could benefit from consumer protections that are already in place. The Fair Credit Reporting Act requires written disclosures to consumers that spell out how to dispute inaccurate information, and it outlines steps for employers and CRA’s to re-investigate situations where a job applicant believes that information is incorrect. Job applicants would benefit by enforcement of the existing laws.
Even though we disagree on how to solve the problem, and even though I don’t buy into all of NELP’s numbers and arguments, this report does a nice job of calling out something that many of us in the business have known for a long time. The so-called FBI “gold standard” of background checks needs some new polish.
For more on this topic, see the Washington Post’s recent story.
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