CIR's Background Screening Blog

From the Child Welfare Information Gateway     (To Print, click here)

Among the requirements for receiving Federal funding under the Child Abuse Prevention and Treatment Act (CAPTA), States must preserve the confidentiality of all child abuse and neglect reports and records to protect the privacy rights of the child and of the child’s parents or guardians except in certain limited circumstances.² All jurisdictions have confidentiality provisions to protect abuse and neglect records from public scrutiny. Confidentiality provisions mandate that such records are confidential, and many include specific mechanisms for protecting them from public view.

Persons or Entities Allowed Access to Records

Most jurisdictions permit certain persons access to registry and department records. In general, these people have a direct interest in a case, in the child’s welfare, or in providing protective or treatment services. Many statutes specifically describe who may access the records and under what circumstances. Typically, persons entitled to access are physicians; researchers; police; judges and other court personnel; the person who is the subject of a report; a person who was an alleged child victim; and the parent, guardian, or guardian ad litem of an alleged victim who is a minor.

In approximately 18 States and Puerto Rico, the person or agency that made the initial report of suspected abuse or neglect may be provided with a summary of the outcome of the investigation.³ In approximately 19 States and Guam, a prospective foster or adoptive parent is provided with information from the records in order to help the parent in meeting the needs of the child.⁴ In 25 States and the District of Columbia, public agencies in other States are permitted access to information related to their child protection duties.⁵

When Public Disclosure of Records Is Allowed

Under most circumstances, information from child abuse and neglect records may not be disclosed to the public. In approximately 27 States and the District of Columbia, however, some disclosure of information is allowed in cases in which abuse or neglect of the child has resulted in a fatality or near fatality.⁶ In three States, the alleged perpetrator of the abuse must be criminally charged with causing the fatality or near fatality before information may be disclosed. (North Carolina)⁷ Georgia and South Carolina require public disclosure of information when a child in State custody has died.

Approximately 13 States allow disclosure of information for the purpose of clarifying or correcting the record when information has already been made public through another source, such as disclosure by the subject of the report, a law enforcement agency, or the court.⁸ In five States, public disclosure is allowed when a suspected perpetrator of abuse or neglect has been arrested or criminally charged.⁹

Use of Records for Employment Screening

Central registry and department records are used increasingly to screen adults for various employment or volunteer positions. Approximately 29 States and the District of Columbia allow or require a check of central registry or department records for individuals applying to be child care or youth care providers.¹⁰ Information is made available to employers in the child care business, schools, or health-care industry. However, it is generally limited to whether there are substantiated or indicated reports of child maltreatment for potential employees or volunteers who will have significant contact with children.

Four States allow parents to check the records of child abuse and neglect for a provider of child care to help them determine whether to hire that provider to care for their child.¹¹ In 21 States and the District of Columbia, a person or agency conducting an investigation of a prospective foster or adoptive parent may access the records.¹²

To access the statutes for a specific State or territory, visit the State Statutes Search.

¹ The records referred to are maintained by State child protection agencies and are not the same as those accessed during a criminal history records check. Criminal histories are records of convictions maintained by the criminal justice system. back
² 42 U.S.C.A. §5106a(b)(2)(A)(viii)-(x) (LexisNexis 2010). back
³ The word approximately is used to stress the fact that States frequently amend their laws. This information is current through June 2010. The States that provide information to reporters of maltreatment include California, Colorado, Connecticut, Georgia, Iowa, Louisiana, Maine, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Pennsylvania, Rhode Island, Wisconsin, and Wyoming. back
⁴ Arizona, Arkansas, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, and Wisconsin. back
⁵ Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, and Wisconsin. back
⁶ Alabama, Arizona, Arkansas, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin allow disclosure when there has been a fatality or near fatality. A ‘near fatality’ is usually defined as a serious injury that places the child in critical condition. back
⁷ Minnesota, North Carolina, and Oklahoma. back
⁸ Arizona, Connecticut, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Montana, Nebraska, New York, South Carolina, and Wisconsin. back
⁹ Colorado, Illinois, Maine, Nebraska, and New York. back
¹⁰ Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. back
¹¹ Louisiana, Mississippi, Missouri, and New Jersey. back
¹² Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Utah, and Wisconsin. back

This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway. While every attempt has been made to be as complete as possible, additional information on these topics may be in other sections of a State’s code as well as agency regulations, case law, and informal practices and procedures.

---

This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.

Related articles

• Child Abuse Prevention and Treatment Act, as Amended, 1996
• Prevent Child Abuse America

Although it is difficult for the public to access these “public protection registry”, entry on these registries can be devastating to the individual. According to www.childwelfare.gov, a listing on these registries can be expunged in certain circumstances. Below are the requirements by state:

 STATE STATUTES

Current Through June 2011
Review and Expunction of Central Registries and Reporting Records
Electronic copies of this publication may be downloaded at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.cfm
To find statute information for a particular State, go to http://www.childwelfare.gov/systemwide/laws_policies/search/index.cfm

To find information on all the States and territories, order a copy of the full‑length PDF by calling 800.394.3366 or download it at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.pdf

Records of child abuse and neglect reports are maintained by State child protection or social services agencies to aid in the investigation, treatment, and prevention of child abuse cases and to provide statistical information for staffing and funding purposes. In many States, these records and the results of investigations are maintained in databases, often known as central registries. Following an investigation, States classify child abuse records in a variety of ways, depending on the State’s statutory language. The classification ‘unsubstantiated’ often is ascribed to situations in which investigators have been unable to confirm the occurrence of abuse or neglect. Other terms for unsubstantiated can include ‘unfounded,’ ‘not indicated,’ or ‘unconfirmed.’ The classification ‘substantiated’ often is given to a report when a determination has been made that abuse or neglect likely did occur. Other terms for substantiated include ‘founded,’ ‘indicated,’ or ‘confirmed.’ Several States maintain all investigated reports of abuse and neglect in their central registries, while other States maintain only substantiated reports. Many States use the records that are maintained in central registries for background checks for persons seeking employment to work with children and for prospective foster and adoptive parents. Therefore, several due process and protection issues arise when a State maintains a central registry that identifies individuals accused of and found to have committed child abuse or neglect. In some cases, persons whose names are listed as alleged perpetrators in a central registry have asserted that the listing of their name in the registry deprives them of a constitutionally protected interest without due process of law.

Approximately 28 States, the District of Columbia, American Samoa, and Puerto Rico provide an individual the right to request an administrative hearing to contest the findings of an investigation of a report and to have an inaccurate report expunged or deleted from the registry.1 In Louisiana, New Hampshire, and North Carolina, a person who wishes to challenge a report must petition the court for a hearing. In Delaware, an individual who has successfully completed a service plan may petition the court to have his or her name removed from the central registry. In Wyoming, any person who has been named in a substantiated report of child abuse or neglect has the right to submit to the registry a statement concerning the incident.

Right of the Reported Person to Review and Challenge Records

1 The word approximately is used to stress the fact that States frequently amend their laws. This information is current through June 2011. The States that provide for administrative review include Arizona, Arkansas, Colorado, Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.

When Records Must Be Expunged

The terms ‘expunction’ or ‘expungement’ refer to the procedures used by States to maintain and update their central registries and record keeping by removing old or inaccurate records. Under the Child Abuse Prevention and Treatment Act (CAPTA), in order to receive a Federal grant, States must submit plans that include provisions and procedures for the prompt expunction of records of unsubstantiated or false cases if the records are accessible to the general public or are used for purposes of employment or other background checks.2 CAPTA does, however, allow State child protective services agencies to retain information on unsubstantiated reports in their casework files to assist in future risk and safety assessment.
Approximately 40 States, the District of Columbia, American Samoa, and Guam have provisions in statute for the expunction of certain child abuse and neglect reports.4 Statutes vary as to expunction standards and procedures. For example, the time specified for the expunction of unfounded or undetermined reports generally ranges from immediately upon determination to 10 years.5 A few States, however, do not permit unfounded reports to be placed on the registry at all. Substantiated reports are usually retained longer, typically at least until the child victim has reached adulthood.
2 42 U.S.C.A. § 5101 et. seq. (2010).
3 42 U.S.C.A. § 5106a(b)(2)(B)(xii) (2010).

Ten States (Alaska, Idaho, Kansas, New Mexico, North Dakota, Ohio, Oregon, Tennessee, Texas, and Wisconsin) and the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands do not have provisions in statute for the expunction of child abuse and neglect records.  For more information, see Chapter 4, National Study of Child Protective Services Systems and Reform Efforts: Review of State CPS Policy (2003), U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, and Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau: http://aspe.hhs.gov/hsp/CPS-status03/state-policy03/index.htm

This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway. While every attempt has been made to be complete, additional information on these topics may be in other sections of a State’s code as well as agency regulations, case law, and informal practices and procedures. (Child Welfare Information Gateway. (2011). Review and expunction of central registries and reporting records.
Washington, DC: U.S. Department of Health and Human
Services, Children’s Bureau.
Review and Expunction of Central Registries and Reporting Records http://www.childwelfare.gov. This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway. Available online at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.cfm

U.S. Department of Health and Human Services
Administration for Children and Families
Administration on Children, Youth and Families
Children’s Bureau
Child Welfare Information Gateway
Children’s Bureau/ACYF
1250 Maryland Avenue, SW
Eighth Floor
Washington, DC 20024
800.394.3366
Email: info@childwelfare.gov

http://www.childwelfare.gov

Related articles

• National Child Abuse Prevention Month
• What can and should we learn from the new “National Registry of Exonerations”?
• Editorial: Time to retool sex offender registry
• Public Safety or Endless Punishment? Should sex offenders be listed on a public registry for life?
• Q&A: Raised on the Registry

Factors contributing to someone’s credit score, for Credit score (United States). (Photo credit: Wikipedia)

The use of credit reports to make employment decisions is becoming RISKY. Experts are concluding that credit reports should be banned for the use of Screening applicants, job promotion, etc except in certain circumstances. While some experts state that credit reports reflect the risk of employee theft, studies have not found that to be true. Many experts question how a credit report will tell an employer how the applicant will perform in the warehouse or the tendency towards tardiness or absences. “There is apparently little scientific research showing a clear link between someone’s personal consumer behavior and their performance on the job.” (http://www.staffingtalk.com/should-pre-employment-credit-checks-be-banned/)

Suzanne Lucas spent 10 years in corporate HR, and founded the Carnival of HR, a bi-weekly gathering of HR blogs. Here are her suggestions for good laws on pre-employment credit checks: (same link as above)

• Credit checks should be made after an offer has been made, not before.
• Require companies to have written policies on how credit histories will be used.
• Require companies to tell candidates up front if a credit check will be performed.
• Require multiple years to be taken into consideration.
• Let companies decide when credit checks are necessary, not lawmakers.

Employers consider the use of credit reports as a decision factor to be “one of the least important”. A 2010 SHRM report shows that employers have decreased the use of credit reports in employment decisions. In 2004,  19% of employers always conducted credit reports, while in 2010, it was down to 13%. Most employers do not request a credit report unless a “job offer” has been made. Two-thirds of the employers allow a candidate to “explain” poor credit report, before a decision to hire is made.

The following reasons for employment credit reports: (http://www.shrm.org/research/surveyfindings/articles/documents/ccflier_final.pdf)

1. Positions with Fiduciary responsibility (handling cash, banking, accounting, compliance, and technology (91%)
2. Senior Executive Positions (46%)
3. Positions with access to highly confidential information (HR, medical, etc)(34%)
4. Positions for which state law requires a background check (day care, medical practitioners (11%)
5. Positions with security responsibility  (9%)
6. Positions involving national defense or homeland security (8%)
7. Safety-sensitive positions (heavy equipment operators, transportation) (5%)
8. Positions with vulnerable public (children, elderly, disabled) (3%)
9. Positions in health care or access to drugs (3%)

Companies that use credit reports as a “condition” of employment might want to reconsider the policy. Employers will lose valuable applicants/employees if they use credit reports without a policy of necessity. Due to the economy, many potential employees have “bad credit” due to the recession. No employment, limited employment, and the corresponding foreclosures, medical bills, etc. are today’s cause of bad credit. Is good credit more important that the ability to perform the job? You may find yourself hiring candidates with great credit, “but NO EXPERIENCE.”

Related articles

• Free Annual Credit Report: How to Get One
• Credit Checks in the Hiring Process Draw Questions
• This horror story is all you need to hear to support credit reporting reform

According to US Labor Department, NC under reports the number of work place deaths and injuries. In 2010, NC reported 35 deaths, while the US Department of Labor counted 148.

“A total of 744 people died on the job in NC in the five year period from 2007-2011. The most common cause of fatalities was transportation incidents (291 deaths), followed by assaults and violent acts (151), contact with objects (121), and falls (109). 52 people died from exposure to harmful substances or environments and 19 from fires and explosions.”

Workplace violence is a major cause of death in the state. We (NC Occupational Safety and Health )identified 13 people who were killed on the job due to violence in NC in 2012, but the actual number is likely considerably higher. The US Bureau of Labor Statistics found that 19 people were killed on the job in 2011 in NC due to violent acts.” (North Carolina Worker’s Dying for a Job)

“The U.S. Labor Department audited North Carolina in 2010, finding that the state downplayed serious safety problems, issued weak fines to violators and failed to properly handle whistleblower complaints.”  http://www.thetimesnews.com/news/region-state/study-more-n-c-workers-die-on-job-than-reported-1.135223 

Read more here: http://www.charlotteobserver.com/2013/04/29/4011756/nc-job-deaths-undercounted-study.html#storylink=cpy

Related articles

• NC job deaths undercounted, study finds
• North Carolina Workplace Deaths Nearly Three Times That Reported By State
• Rally in NC marks workers who died on the job
• How N.C. counties rank for workplace deaths
• OSHA has dismal record preventing long-term workplace hazards

Most people despise Mugshots.com, the Slammer, etc. It seems as though that We like to glorify in the pain and misery of others.  Slammer and Mugshots lets us see ourselves at our worst ” – in mugshots. (I thought DMV pictures were the worst).  Most of the people in these photos are not convicted criminals, just people arrested, and without an official “indictment“. These sights glorify in our misery (shame is not enough).  Even if we are found NOT GUILTY, not indicted, wrong person, etc….these websites continue our misery and shame.  Then when we ask for corrections, they are going to charge us.

Now a Georgia legislator wants to help. State Rep. Roger Bruce (D-Atlanta) states that “People are being extorted”.

“It wouldn’t affect police agencies or the news media, but it would be aimed at commercial companies that charge to remove it from their websites or publications. In addition to requiring free removal, his bill would also allow lawsuits for damages as well as require police agencies to copyright mugshots they take”. http://www.11alive.com/rss/article/268273/40/Georgia-lawmaker-wants-to-police-mugshot-websites

Here is the legislation.  GOOD LUCK GEORGIA.  WE APPRECIATE YOU.  http://www.legis.ga.gov/legislation/en-US/Display/20132014/HB/150 

Al Capone. Mugshot information from Science and Society Picture Gallery: Al Capone (1899-1947), American gangster, 17 June 1931. ‘Al Capone sent to prison. This picture shows the Bertillon photographs of Capone made by the US Dept of Justice. His rogue’s gallery number is C 28169′. (Photo credit: Wikipedia)

Here is a website devoted to a class action suit against mugshots. http://classactionagainstmugshotwebsites.com/wp/

Related articles

• Mugshot Websites Charging Fees to Remove Mugshots
• MugshotsOnline.com and BustedMugshots.com Mugshot Removal Guaranteed by InternetReputation.com
• How to Look Good in Your Mugshot

According to the US Supreme Court, public records belong to the citizens of the “state” not to the citizens of the United States. In this particular case, Americans do not have the right to public records of another state.  The unanimous decision upheld laws in Virginia and a handful of other states that release some public records only to their own citizens.  How will this affect “data brokers”? Will this protect US citizens from information brokers?  Will this make it harder to conduct criminal record searches?

Read the full article here:  http://online.wsj.com/article/SB10001424127887323798104578453300289567938.html

Tennessee, Alabama, Arkansas, Missouri, New Hampshire, New Jersey and now Virginia have some form of law limiting access to public records for non-citizens. Will this benefit NC, its citizen’s and businesses.  I like limiting what is available about me, but really need the information about …you, no matter where you live.

U.S. Supreme Court building. (Photo credit: Wikipedia)

Related articles

• A Disturbing Decision | Supreme Court: States Can Prohibit Non-Residents From Using Public Records Laws To Gather Information
• Supreme Court Says States Can Block Out of State Use of FOIA

Here is a link to the Santa Barbara Newspaper.  http://www.independent.com/  Staff writer Harley Hahn has done a great job with bankruptcy. He is providing 7 articles, so far three are available:

• From April 8 -Understanding Bankruptcy http://www.independent.com/news/2013/apr/08/Uunderstanding-bankruptcy-part-1-7/ 
• April 16-Why we need bankruptcy  http://www.independent.com/news/2013/apr/16/understanding-bankruptcy-part-2-7/ 
• April  21 Modern Bankruptcy Law .  (Very interesting) -READ THIS ONE  http://www.independent.com/news/2013/apr/21/modern-bankruptcy-law-us/ 

FTC released the latest study of consumer frauds. This study released April 2013 updates the last study from 2005. According to the FTC “During 2011, an estimated 10.8 percent of U.S. adults – 25.6 million people – were victims of one or more of the frauds included in the 2011 FTC Consumer Fraud Survey. There were an estimated total of 37.8 million incidents of these frauds during 2011. The specific types of fraud most frequently reported by survey participants included fraudulent weight-loss products, fraudulent prize promotions, being billed for a buyers’ club membership that one had not agreed to purchase, being billed for Internet services that one had not agreed to purchase, and fraudulent work-at-home programs.  http://www.ftc.gov/opa/2013/04/fraudsurvey.shtm

The  survey asked consumers about 15 specific categories of fraud, and two general categories, and of the specific categories the top 10 were:

• Weight-loss Products (5.1 million estimated)
• Prize Promotions (2.4 million est.)
• Unauthorized Billing for Buyers’ Club Memberships (1.9 million est.)
• Unauthorized Billing for Internet Services (1.9 million est.)
• Work-at-Home Programs (1.8 million est.)
• Credit Repair Scams (1.7 million est.)
• Debt Relief (1.5 million est.)
• Credit Card Insurance (1.3 million est.)
• Business Opportunities (1.1 million est.)
• Mortgage Relief Scams (800,000 est.)

An estimated 17.3 percent of African Americans and 13.4 percent of Hispanics were victims; the rate for non- Hispanic whites was 9 percent.  The survey found that high school graduates were the least likely to have been fraud victims; those who did not complete high school were the most likely to have been victims.  Consumers who were more willing to take risks and those who had recently experienced a negative life event (such as a divorce, death of a family member or close friend, serious injury or illness in their family, or the loss of a job) were much more likely to have been victims.  Consumers who indicated they had more debt than they could handle were significantly more likely to have been fraud victims than those who were more comfortable with the amount of debt they had.

To read more or download the study, click here:  http://www.ftc.gov/os/2013/04/130419fraudsurvey.pdf

The FTC also offers ways to avoid fraud,  http://www.consumer.ftc.gov/articles/0060-10-ways-avoid-fraud

Related articles

• Bogus Weight-Loss Products, Fraudulent Prizes Top List Of Biggest Scams
• FTC says fraud reaches record high
• FTC Survey for 2011 Shows an Estimated 25.6 Million Americans Fell Victim to Fraud

Today it is very difficult to get a job or rent a residence with a criminal record. Some people are denied jobs and/or residency for the most minor of a criminal history. This new reality does not benefit employers or the nation as a whole.

On April 25, 2012, the EEOC provided revised guidelines for the use of criminal records in employment decisions. We advise all tenant screening customers to also be aware of these guidelines.

The EEOC is charged with enforcing the Civil Rights Act.  Courts have determined that some use of criminal background checks by employers can cause a disparate impact on protected classes of minorities.  This guidance updates previous work of the EEOC.  Although the EEOC is not permitted to issue a formal rule, this guidance is important because the EEOC can sue employers on behalf of employees, and the guidance can be used by private plaintiffs.

Employers are not banned from using background checks.  However, they must analyze whether they have a specific acceptable reason related to the nature of the job for requiring the checks.  (NCISS Legislative Update, dated April 25, 2012)

To provide some background, January 2012, Pepsi agreed to pay $3.13 million to applicants in a settlement it reached with the EEOC regarding its use of criminal records. Pepsi denied jobs to any applicant with a criminal record, whether it was an arrest record, dismissed case or a conviction.

In addition, in recent legislation, a Virginia Company and the criminal record database used by the employer, paid each applicant it conducted a criminal record, $50,000. In this instance, the employer denied a job to any applicant whose name appeared in the database with no regard as to the actual owner of the record.

At one time, background screening was conducted by professionals. Today background screening companies have popped up with only purpose of making a quick buck and the effect on the applicant or the employer is of no importance. New businesses have popped up as the database companies sell “background screening businesses” Most of these companies care nothing about the needs of employers or landlords- as now they own a technology company. They consider themselves to be selling “public records” and exempt from the FCRA.

The proliferation of the online “instant criminal record check” has caused major problems and new regulations. There is often no way for wronged job applicants to correct the data. Many companies will refuse to correct the data, so each time the database is used by another employer the same bad data displays. Applicants have to send their expungement papers to every database company as each is individually owned and maintained, and they may not be able to find every company using the database to correct the data. Companies are now popping up offering to help job applicants find and notify every database company of the expungement.

Research has been conducted and published by the national press regarding the devastating effect the use of the so called “national instant criminal record databases” has had on job applicants. The proliferation of these databases on the internet with no regard for either v accuracy or privacy is causing further regulatory review and judicial action.

In response to the new guidelines, CIR wants its clients to be informed and also to review their background screening policy.

Under the Fair Credit Reporting Act, an employer’s obligation is:

1. Obtain a signed release in a document separate and apart from the employment application.
2. Conduct pre-adverse action if the background is returned with possibly disqualifying information, allowing the applicant time to review for accuracy and allow for discussion.
3. Conduct the final adverse action.

Included in these requirements is to identify and supply contact information for the consumer reporting agency (background screening company).  The background screening company must answer the telephone or have other means in which a consumer can communicate with the consumer reporting agency. The company must respond to the applicant and must correct inaccurate data.

The use by employers of these databases creates several problems:

1)      Accuracy and thoroughness of the databases-These databases are NOT national. The court data in these databases is very limited. More and more states and counties are refusing to sell their court data because of the rate of error in these databases.

2)      Lack of dispositions, lack of identifiers, corruption of data, inclusion of expunged cases

3)      Lack of knowledge regarding the use of the database. Although the employer may be conducting the search, the data is consider to derive from a consumer reporting agency, therefore all requirements of the Fair Credit Reporting Act apply.

The article “Broken Records” How errors by criminal background checking companies harm workers and businesses” http://www.nclc.org/issues/broken-records.html details the problems with background screening today. The article is worth reading.

The EEOC offers the following guidelines regarding the use of criminal record histories (http://www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm )

The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991.  The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Among other topics, the guidance discusses:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
• Federal court decisions analyzing Title VII as applied to criminal record exclusions;
• The differences between the treatment of arrest records and c(conviction records;
• The applicability of disparate treatment and disparate impact analysis under Title VII;
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

At this page is also a link to download the employer’s manual. Or also here http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#IIIB . We recommend our clients review this new guidance.

A criminal record policy is recommended to be included in every company’s employee handbook, which details the business necessity for excluding the job applicant based on the criminal record. According to the article, Broken Records….92% of companies claim crimes of violence and crimes of theft are business necessity.  The EEOC provides guidance on company policy for criminal record checks in the manual http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#IIIB

Ultimately we encourage employers to give job applicants a 2^nd Chance when feasible. A person should not be punished forever for a crime. It is the job of the justice system to judge and punish the person, while it is the job of a company to do due diligence and protect itself, its employees, and the general public from harmful persons. Length of time since the offense and severity of the crime should be a part of each decision.

Some suggestions you may wish to consider on future background reports:

1)      No arrest information unless identified business need (such as companies working with vulnerable public)

2)      Conviction only reports

3)      Omission of traffic records, after 3 years, except DUI’s and other serious driving offense

4)      Limiting the length of misdemeanor reporting, such as all felony convictions, but misdemeanors only for last 3-7 years,

If you need a sample background screening policy, pre-adverse or adverse action forms, the latest “Summary of Rights under the Fair Credit Reporting Act let us know.

We suggest you review the new guidelines, make sure your background screening policy is up to date, and review your job application to be sure you are not asking “Have you ever been arrested, convicted, etc”, unless you have a definite business necessity. Identify disqualifying information by type of crime, severity of crime, time since the crime and the business necessity of excluding the crime (Such as excluding sex offenders who will be in contact with women, elderly or children). Crimes of violence and theft are business necessity.

The EEOC provides these best practices for employers:

VIII. Employer Best Practices  (http://www.eeoc.gov/laws/guidance)

The following are examples of best practices for employers who are considering criminal record information when making employment decisions.

General

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.

Developing a Policy

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
    • Identify the criminal offenses based on all available evidence.
    • Determine the duration of exclusions for criminal conduct based on all available evidence.
      • Include an individualized assessment.
      • Record the justification for the policy and procedures.
      • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.