In recruiting new talent, employers want to know who the candidates are. Information is typically gathered through application forms, interviews, and background checks. Conducting a background check after a conditional offer is becoming more commonplace. According to a recent study from the Professional Background Screening Association (PBSA), 74% of employers conduct background checks following a conditional job offer.
That said, what is the best kind of background screening program? Beyond abiding by the Fair Credit Reporting Act (FCRA), what should employers consider when reviewing consumer reports?
We spoke with Frasco Profiles’ Amy Harrison, Director of National Sales, and Cody Farzad, Director of Strategic Initiatives, to learn more.
Ban the Box
Many states and cities are adopting ban the box restrictions for employment background checks. Ban the box, or fair chance hiring, seeks to delay criminal history inquiries until later in the hiring process by:
- Removing criminal record questions on job applications
- Eliminating blanket policies against candidates with criminal convictions
- Policies are often a barrier to employment, as they disproportionally affect minority candidates.
- Conducting an individualized assessment of candidates
- This takes into consideration the nature and gravity of a charge, how much time has passed, and the nature of the job in question.
- Candidates are given an opportunity to provide more information.
These steps, especially the individualized assessments, tie in with the Equal Employment Opportunity Commission’s (EEOC) 2012 guidance to consider all factors when using criminal background checks. Ultimately, employers need to consider if the crime is relevant. “Is the crime that a candidate committed specific to the job they’re going to have?” Farzad explains. “Does the job or position tie into the conviction that was reported?”
Fingerprint-Based Background Checks
For businesses dealing with vulnerable populations, such as educators, volunteers, healthcare workers, or security officers, a fingerprint-based background check is often necessary before employment. While not all organizations have authorization to use this kind of check, “There’s a misnomer in the U.S. that the fingerprint check is the gold standard,” Harrison says. “A fingerprint check alone is not enough.”
As with any database, the Federal Bureau of Investigation’s (FBI) fingerprint catalogue is only as good as the information stored in it. The Department of Justice reports that background checks for federal employees via the FBI include inaccuracies about 50% of the time. The Government Accountability Office found gaps in the database, as well: Only 20 states reported that over 75% of their records include final dispositions. Less than half the states in the country have the full, complete record of an individual’s arrest records, which would include the disposition, resolution, or explanation that a case was sealed or expunged. There is no federal standard on criminal records—different states may update information periodically, and some states don’t provide any information to the FBI’s database. And, above all, the EEOC prohibits use of arrest records in making a hiring decision.
“Due to its limitations, the FBI system is not considered a reliable enough source for a background check,” Harrison explains. “Unfortunately, there is no single government data base containing complete and up to date records pertaining to a person’s criminal history.”
Even if an employer is required to conduct an FBI fingerprint check, it’s important to conduct a primary source court record search to access any information that might have been missing.
National Criminal Database
The National Criminal Database is essentially a collection of court records from various states and counties. But, as explained above, there is no such truly “complete” nationwide criminal check. There are over 3,000 courts across the country—some jurisdictions are not available to the data base, some don’t have provide as much detail, and others have significant lag time in reporting. A comprehensive data base is only as accurate as the information submitted to it. The National Criminal Database is an excellent tool when used as a supplemental search, also known as a “tips and leads search.”
“To use the analogy of a net: you can cast a net far, but there are holes in it,” Harrison says. The National Criminal Database can catch crimes that a person might have committed outside of where he or she currently lives, but it is susceptible to missing information.
To be compliant with the FCRA, a database’s content must be complete and up to date. If something is recovered from the National Criminal Database, the employment screening company must also verify the information at the local court level before reporting it back to the employer to avoid litigation.
“It can put your organization significantly at risk if you are solely relying on the National Criminal Database search,” Harrison says. “We cannot stress enough that the only way to get the most accurate, up to date information is by going directly to the courts and searching the court records.”
A 2021 PBSA survey found that 72% of respondents think it’s important for companies to have access to international screening capabilities. As the working world has become significantly more global, an FBI Fingerprint Background Check or search of the National Criminal Database may no longer be effective in screening a candidate.
Employers need to be aware of the requirements for background checks on a country-to-country basis. The processes vary depending on the country, ranging from necessary form to data that’s provided. Organizations should also note that the turnaround time and cost for an international background check will likely be much more than in the U.S.
Takeaways for Employers
Overall, there is no single “perfect” background screening tool. The best background checks are comprehensive, multisourced, and specific. Companies should have a documented screening policy that is reviewed annually, and they should ensure their policies and disclosures are simple and in line with federal and local laws. These factors will help employers ensure that employment screenings are legal, ethical, and effective in finding the best candidate.
Check out our on-demand session to learn more about background checks.