The key to limiting employee problems is to avoid hiring problem employees by conducting pre-employment screening. Advances in technology have led to a new pre-employment screening option for employers and security directors: the "national" criminal record database. Vendors of such databases typically claim to have compiled more than 120 million records from 40 or more states. These databases appear to offer security directors an instant criminal check at a very low price.
Although a multi-state records database can be a powerful tool, security directors need to understand the limitations and legal exposure associated with using them. If they don't, employers may find themselves embroiled in litigation.
Nothing Like the Real Thing
These so-called national criminal databases are not true warehouses of the nation's criminal records. The data in them does not come from the National Crime Information Center (NCIC), the closest thing to a true national database of criminal justice and justice-related records maintained by the FBI. It is illegal for private companies to obtain criminal information from the NCIC without government authorization.
Since most private employers cannot access the NCIC, private so-called national criminal databases do offer an alternative that security directors can consider in addition to their other screening tools. But they must keep in mind the good, the bad and the ugly of these systems if they intend to use them.
Criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level. A traditional criminal search is conducted at individual courthouses that may be relevant to the applicant's history. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
The data comes from a variety of sources including state court records and repositories, correctional records, and county courts that make data available. By casting a much wider net than a county-level search, a database may pick up information that would otherwise be missed. The firms that sell database information can show test names of subjects that were cleared by a traditional county search, but for whom criminal records were found in other jurisdictions using a search of their database.
These databases are readily available to security directors through Web sites and pre-employment background firms. In fact, it could be argued that failure to use such a database demonstrates a failure to exercise due diligence, given the widespread availability and low price. If a firm does a traditional court search but misses a relevant criminal record from another jurisdiction that a database search would have picked up, the employer may have some explaining to do in a lawsuit.
Despite their value, criminal records databases have serious flaws. An April 11, 2004 article by the Chicago Tribune's Greg Burns discussed a test of an undisclosed online database service by a criminology professor at the University of Maryland. According to the article, the professor obtained the criminal records of 120 parolees in Virginia and submitted their names to a popular online background check company. Burns wrote that 60 names came back showing no criminal record, and many other reports were so jumbled that the offenses were tough to pick out. These types of errors may result from a number of causes, including incomplete records, name variations and untimely information.
Incomplete Records. Criminal records databases can be incomplete for a number of reasons. First, they do not contain records from all states and jurisdiciotns. This is why I call them multi-state instead of national databases. States that do provide records may not provide all state records. For example, not all court systems make their records available electronically, and those that do may not provide records from all courts.