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One of the unpleasant aspects of our business has to do with fees to access records. Government agencies such as county courthouses and state repositories, state Department of Motor Vehicles, and Workers Comp boards frequently charge a fee to obtain records. Everyone has to pay these government fees regardless of who they are.

Fortunately, less than 4% of the counties in the nation charge a fee to obtain courthouse criminal records. You may be affected more or less often, depending on how counties in your given area operate. The fees can range from $1 to $20; most are around $5. Only about half the states provide a statewide search with fees ranging from $4 to $20. There is one exception, however. New York charges a whopping $52!

All state Department of Motor Vehicles charge a fee to obtain driving records, anywhere from $1.25 to $15.

Many states charge a fee to access Workers Comp records. The range is from $3 to $15.

Another “necessary evil” in our industry involves dealing with third parties that charge a fee for verifying employment or education. It’s a very frustrating exercise for us. The problem is they have us over a barrel, so to speak. They provide less information than we could otherwise obtain by ourselves; and to top if off, they charge for this minimal service. Furthermore, they can raise their rates and there is nothing we can do about it. There is no alternative to using them for verifying employment or education for certain companies or schools. If we try to go direct to the company or school they tell us to call the verification number ... no exceptions. It's almost like extortion. If we want the information we have to pay. And everyone has to pay it. If you called them yourselves you would still be required to pay the fee. Initially, these companies only charged $4 or $5. At least that was manageable. Now, one company charges $14! It's outrageous but there is no recourse. Actually, in some cases we eat some of the cost. But for the most part we have to pass the fees on to our clients.

Our margins on reports aren't very great. We make just a handful of dollars per report package you order. If we were to absorb all the fees we would lose money on each report. And of course that doesn’t make any business sense. On the flip side, your company is trying to manage a budget and predict what your costs are going to be based on the number of hires you have planned. This makes it tough on you as well because it is a moving target. It's really one of the unfortunate and aggravating parts of our industry. We hate to "nickel and dime" our clients. There may be some screening companies that claim not to have add-on fees per se, but they make up for it by inflating the price of the report package. Either that or they cut corners elsewhere to make up for it. If they didn't they would go out of business. We don't feel that's fair to our customers because you would be paying an artificially higher price in situations where there is no third-party fee or you would be receiving inferior service. One way or another, the customer ultimately pays for the fees. It would be great if we could find a way to make the fees disappear but barring a revolution in the marketplace it's not going to happen. If you like, we can set up a formula for how many fees or what amount you want to pre-authorize so we don't have to contact you with e-mails each time asking for permission to proceed. Call us at 800-473-7778 x104 if you would like to discuss your options. We appreciate your understanding of this rather “touchy” subject.
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New Jersey:
Assembly Bill 2566
This bill will blur the distinction between private investigators and the rest of the world. Virtually anyone who investigates someone will be a private investigator. This will include all employers' HR departments that verify past employment and even CPA's doing audits. This bill goes beyond the inconvenience and expense of requiring a private investigator's license and it makes it virtually impossible for anyone other than a private individual who is a long time New Jersey resident from getting a license. For example: one must have a least five (5) years experience in law enforcement and five (5) New Jersey residents must swear, for each officer and director of your company that they have known them for three (3) years prior to applying for a license. This makes obtaining a license for any outside company impossible and even for a New Jersey based company very difficult.  In 1939 the original statute had an exemption for "credit bureaus", but non-credit related consumer reports will not be exempted. This bill would virtually eliminate the ability for most companies to check on the background of anyone from the state of New Jersey.

New York
Assembly Bill 3004
This bill requires a consumer reporting agency/background screening company pay each consumer $.50 for each consumer report or investigative consumer report unless the consumer waives such fee in writing.

Maine
HP 666
This legislation allows a consumer to instruct any consumer reporting agency, including background screeners, not to release information. This right exists regardless of weather the consumer has been a victim of identity theft. An agency may charge a "reasonable fee" to block information unless the consumer provides "proof" of identity theft.

Unlike security freeze legislation in some other states, the CRA in this instance is not given the right, nor is it prohibited, to advise the user that the information is blocked.

Vermont
House Bill 190
This legislation limits employers access to criminal records that precede the request by no more than ten (10) years. This bill unduly restricts employer' need to know critical information. For instance, does a school or company want to hire a convicted sex offender?

New Hampshire
House Bill 643
This bill creates the justice information system: "J-ONE". While under this legislation a consumer reporting agency can have access to this database, the database excludes all "personal information". Unfortunately, the list of personal information is extremely long: photo, image, social security number, driver's license number, NAME, address, telephone number, fingerprints, and physical description. Obviously if all personal information is deleted from the file then the file will have nothing in it to provide to the users. If passed and enforced, the availability of criminal records in New Hampshire will be gone. 

Oregon
House Bill 2343
This bill contains several deviations from the FCRA. Here are just a few:

1. A credit report for employment purposes cannot include credit information. While many employers do not use credit reports, some do and the financial status of an employee is important to jobs in banks or for bookkeepers, etc.

2. Matching Information. the information that a user for credit purposes must provide to the credit reporting agency consists of the following: full name, date of birth, full address. If the consumer provides his/her social security number to the user then this must be provided to the CRA. This is a good provision, but he CRA cannot provide a report back unless the identifiers in the record or database matches that information provided perfectly. If there is an error in the database, this could cause many problems.

Employment Screening Services monitors state laws and will make you aware of any laws that may effect your company and its ability to screen your applicants.

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We are frequently asked about FBI or National Crime Information Center (NCIC) records and why we cannot use them. The quick answer is that it’s illegal for any non-law enforcement agency to access these records. The more meaningful answer is they are not as accurate or up-to-date as the on-site county courthouse searches we already perform for you. Consider the following facts:

• 94% of criminal records are convictions from cases tried in the states' trial courts. The criminal case information the FBI collects from these non-federal courts is predominately arrest-related. There is no procedure that mandates the adjudicating jurisdiction to report the disposition of crimes¹. This is an important issue to employers.

• The EEOC regulations severely limit an employer's use of arrest records. The EEOC has strict rules for employers making employment decisions using the fact that an applicant has been arrested. In addition, many states have laws that greatly restrict employers' ability to discover or use arrest records. The use of the FBI databases as a primary source could easily place a private sector entity in violation of the EEOC or of state law.

• The Federal Fair Credit Reporting Act (FCRA) demands that when an employer hires and uses a service (Consumer Reporting Agency - CRA) to perform the background, the most up-to-date database is used. The use of arrest-only records is also regulated. Thus, the use of the FBI databases as a primary source could likely place a private sector entity in violation of the FCRA and open to a negligent hiring lawsuit.

• Many state occupational licensing boards are mandated to check the FBI database when tasked with issuing or re-issuing credentials. Currently, it can take up to 8 weeks for the FBI to process a request, unless the requestor is placed in a high priority bracket.

So, why is the FBI database incomplete, inconsistent, and inaccurate?
The reason is simple. There are no federal laws, consistent state laws or industry standards that determine how infractions or crimes (misdemeanors or felonies) occurring at the state, county, or local levels are collected, indexed, searched or used.

Consider these examples²:

• Only 32 states require prosecutors to report to state repositories a decision to decline prosecution of a case.

• Only 35 states and DC require law enforcement officials to notify the state repository when an arrested person is releases without formal charging, but after fingerprints were submitted.

• Only 42 states use computer edit and verification programs as part of data quality procedures.

• Only 21 states report they receive final felony trial court dispositions for 70% or more arrests within the last 5 years.

• Only 10 states report they receive 100% of final trial court dispositions.

Until these issues are addressed, the problems solved, and the resulting record database is beta-tested successfully, the FBI is merely providing a supplemental database with limited value. For these reasons, ESS will continue to monitor all legally accessible databases for criminal records but will continue to pull most records on a county-by-county basis since these are the best and most accurate records available to us.

¹ From the U.S. Department of Justice August 2003 release of DOJ's Survey of State Criminal History Information Systems, 2001 (www.ojp.usdoj.gov/bjs/abstract/sschis01.htm)
² The statistics shown are taken from BRB Publication's Public Record Research System and from the U.S. Department of Justice August 2003 release of DOJ's Survey of State Criminal History Information Systems, 2001 (www.ojp.usdoj.gov/bjs/abstract/sschis01.htm)

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Copyright © 2005 Employment Screening Services, Inc.
627 E. Sprague Avenue
Suite 100
Spokane, WA  99202
1-800-473-7778