Hiring & Recruiting

Criminal Background Checks: A Matter of Risk, Reputation, and Requirements for Employers

The process of commissioning a pre-employment criminal background search has tripped up many an employer, and for good reason. Criminal background checks can include many data points—arrest records, conviction orders, sentencing, appeals, inmate records and activities logged in sex offender or state abuse registries to name a few—stored in a wide array of locations ranging from police precincts to courthouses to corrections departments.background checks

Additionally, more records than people initially think aren’t available online, often existing only as hard copies. When they are in electronic formats, they’re sometimes not accessible via the web.

Confusing matters further are the varying rules and regulations, depending on the location of the organization and the candidate, and inconsistencies in turnaround times based on the type and geographic scope of the search. Many organizations understandably feel as if they’re embarking on a search for a needle in a haystack.

Yet, there appears to have been vast improvements in employers’ comprehension of criminal record databases over the past 3 years. Whereas First Advantage’s survey data shows that 38% of companies didn’t understand the difference between a database search and county courthouse search in 2014, that number shrunk—significantly—to 16% in 2017.

What’s propelling the increase in understanding among employers? A concern for their reputation, for one thing. The news stories swirling these days related to terrorist attacks, pernicious ransomware and, of course, the #metoo movement constantly remind everyone how just one really bad hire can not only be expensive ($17,000 per bad hire, according to 2016 Career Builder data) but can devastate years of work building a company or brand. Indeed, 72% of respondents in First Advantage’s survey ranked “impact on company reputation” as the major risk versus 43% in 2014 when the top concern involved the potential cost of litigation.

What’s an Employer to Do?

With no silver bullet in criminal background checks, and no all-encompassing criminal database to search, how do most organizations go about performing this due diligence on their applicants, employees or partners?

At minimum, most employers engage their background screening company to search available online data (such as “national” criminal databases) to cast a wide net that helps identify locations across the U.S. where a candidate may have a criminal record. They will likewise have a statewide search done (if available) in the state of residence of the subject of the search in recognition of the fact that criminal offenses most often occur near where the individual lives. Employers will also commonly conduct a search of state and federal courthouse records for the counties or jurisdictions where the subject of the report has lived or worked for the last 7 years.

From there, employers may engage their background screening provider to run other searches, including, but not limited to, what is known as a “developed” names and addresses search. This analysis pulls records from vendors who track names and addresses associated with a person’s social security number, as there may be different names such as aliases or maiden names as well as addresses perhaps not disclosed by the individual in their job application that can be used to expand county or statewide searches.

Screening Requirements and Risk Modeling

For certain industries or roles, professional licensure requires specific criminal screening. For example, within the financial industry, the Federal Deposit Insurance Corporation has established guidelines recommending, at minimum, employees be screened for prior criminal convictions and industry sanctions. Obviously, companies need to be aware of any such requirements governing their industry or employee populations.

Beyond that, how expansive a search becomes often comes down to a risk assessment of the position associated with the screen. It’s wise to identify—and gain internal consensus with—the overall risk tolerance in any employment screening. Different organizations will undoubtedly need and want to confront different issues specific to their unique business, but there are a few common yet critical questions most all companies can benefit from asking:

  • Will the individual(s) being hired have access—potentially unsupervised access—to at—risk populations, such as children, the sick or the elderly?
  • Will they have access to sensitive customer information?
  • Will they have access to sensitive company information?

Based on their answers to these questions, organizations should consider creating job-specific screening packages that can help promote hiring consistency by applying the same requirements to all applicants. These packages should include tiers of what risk level the company is willing to absorb; for example, low risk, moderate risk and high risk if not still more gradation.

In addition to assessing a risk level based on the above factors, it’s wise to categorize jobs based on categories of seniority (entry-level, management-level, executive-level.) After all, high-risk positions not only include those responsible for the safety and welfare of others, but also individuals in roles that may importantly affect public perception, brand reputation or investor satisfaction with the company.

Of course, final review should be done in consort with legal counsel, who can ensure the program being built complies with often-nuanced laws and guidelines.

For more information on pre-employment criminal background searches, including an overview of some of most impactful laws and rules surrounding criminal background searches in North America and throughout the world, the latest, average costs and turnaround times of criminal searches and other insights on trending data, individuals can download “Uncover the Past,” First Advantage’s free guide to understanding criminal record searches for employers in the United States at learn.fadv.com/criminalguide.

Bret Jardine Bret Jardine (bret.jardine@fadv.com) leads legal counsel for First Advantage, a global provider of comprehensive background screening, identity and information solutions that gives organizations access to actionable information when making people decisions. Find First Advantage at www.fadv.com, @FirstAdvantage or https://www.linkedin.com/company/first-advantage on LinkedIn.