Criminal History Searches
Understanding the Criminal Records Process

When it comes to pre-employment screening, perhaps the most commonly misunderstood subject is the criminal history search and the criminal record retrieval process.  Contrary to what many people believe, there is no central source or database from which all criminal record information can be accessed as needed.  For employers seeking to conduct thorough background checks on prospective employees, a basic understanding of the criminal record process is necessary.

Most criminal records must be tracked down through the court system of the county in which the crime took place.  Confusion over this process comes from fact that three different governmental entities take part in creating the criminal record.  No one can be arrested, tried, and convicted by the same agency.  Law enforcement makes the arrest, a prosecuting attorney decides if there is enough evidence to charge a person and for what crime, and then a judge or jury decides the outcome.  Furthermore, judges and parole boards can later modify, amend, or set-aside a court decision. The final outcome of a case can come many months or even years after the original finding.

Records created by law enforcement agencies do not serve the same purpose as court records.  The general purpose of law enforcement records is to provide accurate identification of the suspect and document the events surrounding the arrest.  Once the case goes to court and an outcome is known, there is no attempt by the court to go back and update the law enforcement agency’s records. Therefore, police records remain incomplete and generally are not useful for pre-employment screening purposes.

Adding to the confusion are groups, both public and private, that consolidate certain records to serve a specific purpose.  For example, most state police departments consolidate records into a central repository for the purpose of assisting law enforcement officers in identifying repeat offenders and fugitives from justice.  Although access to a state’s repository may be useful, it has several inherent problems. Similar problems exist with private businesses that purchase tapes or disks of criminal data for the purpose of re-selling it.

What Is the Best Source for a Criminal History Search?

Since 1987, ESS has conducted criminal history searches across the United States at county, state, and federal levels.  Our primary method of searching for criminal records is through our nationwide network of localized, record retrieval specialists at the county level, where criminal offenses are prosecuted and officially recorded. These are professional individuals with specific knowledge and expertise about their local county court jurisdictions.  They make personal visitations to the courts and perform a physical check of the public record index.  We screen, test, and retest our representatives in the field to insure they are the most proven and experienced researchers available.

In some counties, we have direct access to the court’s database.  However, we only access a database as a primary search method if it is the same, real-time database that is maintained and used by the court itself.  Whether the search method is a physical check or a direct assess to a court’s criminal records, the best place to search is at the county court level.  The county search is the most reliable and up-to-date source available.

Searches through a County Information System

There are many states that can be searched county by county in a single process.  These states have a judicial information administrative department that has developed a network connecting all the county criminal indexes together.   A master index of defendant names allows a remote user to search the entire state with just one name entry.  If a match is found, the user can then go into the county where the match is located to obtain specific information.  Since these indexes are the same ones used by the county clerks themselves, they are accurate and up-to-date.  Occasionally, clerks fail to fully annotate a case and a phone call or physical visitation is required.  We utilize these systems where available.

State Searches through a State Law Enforcement Agency – Be Aware

All states have a statewide criminal record repository, usually maintained by the state police.  However, not all states allow public access to their criminal index.  Of the state searches available to the public, some can only be accessed by mail, and/or require special forms, which may require notarization.  A response may take up to six weeks.  In the interest of time, most employers forgo this type of state search. 

There are state indexes that have quick responses, making the statewide search an option, yet they should be used with caution.  State repositories may offer wider search coverage than a county search, but they do have drawbacks.  States rely on two sources of information: the law enforcement agency to report an arrest; and, the county court to report an outcome or case disposition.   While the process of reporting arrest information to a state agency is somewhat reliable, the process of getting disposition information to the state repository is slow and inconsistent, and in some cases non-existent. 

While court clerks work to keep their county’s public index updated, they often lack the time and the mechanism to report dispositions to the state index.  Compounding the problem is the fact that many counties are experiencing staff shortages due to budget constraints.  A few state legislatures, such as in Texas, have gone so far as to mandate that courts report information back to the state system, and yet ESS has found the Texas index to be one of the least reliable for getting comprehensive coverage and complete information.

The lack of disposition information available to a state’s index compromises the statewide search in one of two ways, depending on the state’s dissemination policy.  First, some states will only disclose cases they know resulted in a conviction, as in Oregon and Washington.  If your applicant has a record in one of these states, say a serious felony, but the county court or corrections department has not contributed disposition information back to the state, you may receive a “No Record Found” from the state index.  By itself, a “No Record” from a state police index gives a false sense of security.

In contrast, other states, such as in Florida and Oklahoma, will disseminate all information it receives, including arrest information without dispositions.  Since the outcome of a criminal charge may be quite different from the original charge, to act on arrest information is unwise. The charge may have been changed or dropped altogether since the arrest. Taking adverse action on arrest information by itself may also be in violation of EEOA, and state law.

When a county information system is not available in a state, a search through a state police index can be valuable tool, especially when it can be done quickly.   Because of the limitations and loopholes, we strongly suggest that a search through a state index is used only as a supplement to the county search, and not by itself.

Proprietary Databases – Not Recommended

ESS never utilizes a proprietary database as a primary source for criminal history searches.  Some businesses, or “marketers” purchase bulk data in tape or disk form from county or state agencies.  Data obtained in this fashion is only made available once a month or quarter, since it takes time to compile, produce, and then distribute the tape or disk.  By the time the information is purchased, added to a private database and then re-sold to an employer, several months to a half a year may have elapsed.  Furthermore, quality controls, such as search parameters, comprehensiveness, and accuracy are also compromised when relying on a third party to collect and maintain criminal record data. 

Most marketers are not familiar with laws and regulations governing the use and dissemination of criminal record information in the hiring process.  For example, the Fair Credit Reporting Act has a section pertaining to the use of public records for employment purposes, in which it requires employers use only the most up-to-date and accurate information available.  Marketers are also not typically well equipped to handle follow-up questions or requests for additional information such as court copies. In other words, they are selling an “as is” product, not a service.

ESS in-house and field specialists stand ready to answer questions, conduct additional inquiries, and obtain copies at the court level when necessary.  While the use of a proprietary database may seem attractive, the risk is considerable.  

ADDITIONAL SOURCES AVAILABLE

Federal Criminal Searches

Violations of federal criminal law are prosecuted in the federal court, a totally separate judicial system from the county court system.  Some examples of federal crimes include mail fraud, interstate drug trafficking, certain firearm violations, bank robbery, and crimes committed on Indian reservations or federal property.  There are 94 Federal U.S. District Courts.  Some districts comprise an entire state; more populous states may have three or four federal district courts.  Regardless, ESS is able to search federal records for an entire state in one process. While the vast majority of the crimes are prosecuted at the county level, a federal criminal record search should also be considered.  It is very economical at $10 per state.

Some people confuse federal searches with “nationwide” searches.  They are very different.  

The only entities with the capability of conducting a single search that covers the entire United States are the FBI and affiliated law enforcement agencies.   Some industries, such as banking, investment, and real estate are required to conduct an FBI fingerprint check for certain positions, but unless required by law, private businesses and individuals do not have access to a nationwide criminal search.  Unauthorized use of FBI or police records is a violation of federal law.  Please beware of any private individual or company that purports to have access to a nationwide criminal history search. 

State and Federal Inmate Searches

Every state has either a Department of Corrections or a Bureau of Prisons that indexes inmates who have served time in the state’s prison system.  With very few exceptions, this information is available to third parties.  This search is a valuable supplemental tool to be used with a standard criminal history search, especially in those states where a statewide criminal record search is not available. 

California, for example, has large metropolitan areas made up of different county governments.  Since California does not offer a statewide criminal search, the most appropriate county or counties must be singled out for criminal searches.  An inmate search through the California Department of Corrections is not a criminal history search since it only includes prison inmates, but it is statewide in scope and very possibly could uncover criminal activity in counties that would not have been searched otherwise.  The State Inmate Search does not include individuals who spent time in a county or city jail; only those taken into custody by the state prison system.  The State Inmate Search covers at least seven years, has a quick turnaround time, and is quite economical at $7 per state.

A Federal Inmate Search is also available.  This search is similar to the State Inmate Search except it is conducted through the Federal Bureau of Prisons, which maintains an index of persons who have entered into the federal prison system.  A person sentenced to prison for a federal crime (see Federal Criminal Searches above) will become a federal inmate.  The Federal Inmate Search covers the entire United States and U.S. territories. It would not include inmates of a state prison, county, or city jail.  This search is also $7.

Wants and Warrants Search

There is one minor exception to the rule that nationwide searches are not available to the public.  Certain law enforcement agencies (when not against state law) will allow private companies to utilize a Wants and Warrants database.  All law enforcement agencies who are seeking individuals wanted on an indictable felony warrant, voluntarily report the subjects to a centralized Wants and Warrants database.  ESS has been authorized by a law enforcement agency to access this database, but keep in mind, these are not criminal record searches. This is an important distinction since most applications (and some state laws) only address an employer’s right to ask a job applicant about criminal convictions.  If an applicant is clear of convictions but is wanted on a felony warrant, we recommend consulting your legal department for direction.  The information may not be the basis for an adverse action without first gathering additional information or giving the applicant a chance to explain.

OTHER USEFUL FACTS ABOUT CRIMINAL HISTORY SEARCHES

Number of Years Searched

A seven-year search has become the industry standard for the use of public records for employment purposes.  From the early 1970’s until late 1990’s, the Fair Credit Reporting Act considered public records older than seven years from the conviction date to be obsolete, with a few exceptions.  Many state laws adopted the same time frame and even some courts started archiving records after seven years.  In 1998, the FCRA was amended and the seven-year rule was deleted.  The FCRA does not currently provide any time restriction on reporting convictions, although state restrictions may still apply.

Employment Screening Services can guarantee a seven-year search and depending on the jurisdiction we may receive older records as well.  Unless instructed otherwise, we will forward records older than seven years with the caveat that the age and job-relatedness of a record should be considered, and that you may wish to consult your legal department before taking adverse action.  If you have a special circumstance, or are aware of an older record that you want to know more about, please give us a call.

How Criminal Records Are Matched to an Applicant?

With the exception of some state repositories, which can cross-reference by SSN, criminal records are indexed by name only.  Once a name match (or name similarity) is found, the index is then checked for more identifiers.  Date of birth is the most common identifier used in criminal records.  Address, driver’s license number, physical description, and SSN are sometimes available for comparison. 

Because county criminal indexes are public information, most courts refrain from using the SSN as an identifier since it is not public information.   With each criminal record reported, ESS will show how the record was matched to the applicant.   Since the primary identifier is the date of birth, ESS looks to the information submitted by the client.  In the absence of a date of birth on the submitted application materials, ESS looks to other reports such as the credit/ID, SSN Trace, and MVR. 

Different variations of a first name such as Kenneth, Kenny, Ken, K., are checked in a single search. 

When the applicant has used significantly different first names and different last names, a separate search is required.  ESS will always check under the submitted name unless otherwise instructed.  When you find the applicant has used other last names, it may be prudent to request an additional criminal search.  

What Criminal Information Does ESS Report?

When possible, ESS will conduct searches in a county’s felony and misdemeanor courts.  In some counties a full misdemeanor search is not possible.  For example, New Jersey has many separate misdemeanor courts in each county.  The misdemeanor courts do not network through a main index, making a full misdemeanor search unfeasible.  ESS will clearly note when a felony only search is conducted. 

When the final disposition of a criminal charge is a finding of guilty or no contest, ESS will report the record as a conviction.  Reportable non-conviction cases include those awaiting adjudication or sentencing, and those where the defendant has failed to appear.  The use of arrest information (when the case was never prosecuted or resulted in a dismissal) is not recommended.  Certain industries and government agencies have positions such as banking, real estate, investment agents, law enforcement employees, public office holders, and lottery officers that allow consideration of arrest-only information. 

As a provider of consumer reports for employment purposes, Employment Screening Services generally will not provide non-conviction information that no longer has the possibility of becoming a conviction, unless the employer can demonstrate that it has a necessity, such as in the industries mentioned above.   The use of arrest information by itself is against some state laws, such as in California. Also, since a disproportionate percentage of arrests come from minority populations, the Equal Employment Opportunity Commission generally considers use of arrest information to exclude applicants from employment to be a discriminatory practice. Please seek legal counsel before taking adverse action based on arrest information.  Even when a criminal case results in a conviction the EEOC requires that the nature and gravity of the offense be considered, as well as the nature of the prospective job, and the age of the conviction.

Is There a Possibility for Error in the Criminal Record Information?

Employment Screening Services follows strict controls, policies and procedures, and researcher tests to minimize the possibility of providing inaccurate information to our clients.  Realistically, however, human error may occur.  Consider that from the very beginning of the process, when a person is arrested, all the way through to the time an employer receives the information, there are many levels of human involvement, and therefore, a chance of error.

We are very confident in the ability of our professional researchers and processors, and yet even when we consistently and accurately report  criminal information as it exists in the public record, the information can still be inaccurate because the public record itself may be incorrect.  Clerks and other court personnel have been known to incorrectly enter information into the public record.  In many counties, a record retrieval specialist must rely on a clerk to conduct the searches and provide record information if it exists.  We have no control over inaccurate searches made by court personnel. Lastly, while county court information is the most reliable and up-to-date information available, modifications and amendments to a case occasionally fail to be recorded onto the public record index.  We strive to report criminal information 100% accurately, but we can only report what is currently available on the public index.

It is for these reasons that Congress included an adverse action obligation for employers into the 1996 amended Fair Credit Reporting Act, which governs the use of all consumer reports (not just credit reports).  The law states that before an employer takes adverse action based on information in a consumer report, the applicant be given a copy of the report and a summary of the consumer rights.  In other words, just in case an error was made, the applicant will have an opportunity to dispute or explain the information.  Please contact us if you are not familiar with the FCRA obligations and/or the forms involved.

How to Decide Where to Search and How Many Counties to Search

Without the availability of one large, comprehensive database, there are some choices to be made regarding criminal searches.  Each company’s needs and resources are different.

First, ESS will always follow client instructions regarding the location for a search and the number of searches to be conducted. Many clients provide set instructions for all applicants who are screened, such as, to search all locations of residence or work history for the past five or seven years. Depending on the risk potential, you may want to conduct more in-depth searches on applicants for more sensitive positions.  As long as all screened applicants are treated the same within a given job or security classification, discrimination or disparate impact is not a concern.  Federal criminal searches, State Police searches, State and Federal Inmate searches, and the Wants and Warrants search are all valuable supplemental tools, especially for critical, high-risk positions.

In the absence of instructions, we will use the submitted application materials and addresses from other sources (credit/ID, SSN Trace) to determine most appropriate single location to search.  If the location is in a state with a County Information System (described above), that system will be utilized.  If not, a criminal record retrieval specialist will be dispatched to the most appropriate county court for a physical check of the records. 

It’s our goal to help you understand what is available and what is involved in the criminal search process so that you can be confident in your pre-employment screening program. We are always happy to discuss the options available and customize a screening package to fit your needs.  Please don’t hesitate to give us a call.