The Perils of Proprietary Criminal Databases

We have written several articles over the years about the use of third party criminal databases for employment purposes.  There is a lot of misleading information out in the marketplace so we like to revisit the subject from time to time. 

Perhaps you have been contacted directly by one of the criminal database companies or a screening company that uses them.   Invariably, their pitch is low price and fast turn around time.  It’s true, they are cheap and fast.  But don’t confuse price and speed with value and accuracy.  In the long run, they could end up costing you a lot more – on many levels.

Criminal databases have been around for a long time.  They are a useful tool for the screening industry when used with discretion.  In fact, we use them at ESS.  They allow us to cast a wide net across the country to see what may be out there on a given applicant.  But like a net, there are holes and lots of things can slip through.  For that reason we only use criminal databases as a supplement; never as the primary or sole search.  We always send court retrieval specialists into the courthouses or use a trusted state repository of criminal records to verify the accuracy of information.

Let’s look at how these proprietary criminal databases are constructed.  Courts and other agencies often times sell information in bulk to database companies.  These companies then input the data into their computers and make it accessible to subscribers.  Periodically, and sometimes randomly they add new information to the database.   This can happen weekly, monthly (the most common), quarterly or even yearly.  Most often the information is simply added to the database on top of the older records.  In other words, it is sequential in nature.  So what’s the problem?

The problem is that the old data is seldom, if ever, updated.  For example, if an applicant’s record has been expunged by the courts, it isn’t going to be erased in the third party database.  It will still be part of the file.  Employers that utilize a criminal database by itself will not be aware of this.  They will be basing a hiring decision on a record that technically no longer exists and is therefore illegal to consider.  An applicant who catches wind of this is in a strong position to pursue a lawsuit.

Another problem with proprietary criminal databases is the frequent lack of personal identifiers in an individual’s file.  This makes it difficult to ascertain if the record in question actually belongs to your applicant as opposed to someone else with the same name.  Is it really your applicant, John Smith, or someone else? 

In order to comply with federal law (FCRA) the database company or screening company using the criminal database is obligated to send out a notice (contemporaneous notification) to the applicant informing him there is a possible record.  The responsibility then falls on the applicant to prove it is not him.  The FCRA does not spell out how much time the employer should give the applicant to respond.  Therefore, many companies proceed to the next applicant in line and hire him or her.  This is where the original applicant is short changed and the company may be losing out on the best candidate - all due to misinformation.

Most applicants who receive a contemporaneous notification have no clue what to do with it.  So most do nothing and consequently lose a job offer or have it rescinded.  Those that do contact the employer often have to jump through numerous hoops to prove they have been misidentified by the criminal database.  By that time, the job may have been given to another applicant because the employer needs to fill the position.  Another lose – lose situation.  The applicant loses and the employer loses.

The following news story link is a good example of what can happen when a criminal database is used as the sole source of information for judging an applicant.   Click Here To View The Video .

Criminal databases are also increasingly being offered to the public.  BeenVerified is a company selling an app for the iPhone and Android that allows one to conduct a background check on another individual.  When first launched in 2009 they had nearly 1 million hits before Apple pulled the app over concerns about privacy invasion.  The app has just been repackaged and re-launched and is now being marketed as a service for employers as well as individuals.  This has the potential to create many more mistaken identity issues than ever before.

Situations where job applicants are suing employers or filing complaints with the FTC (Federal Trade Commission) or the EEOC because of proprietary criminal database usage are on the rise.  Last week the EEOC convened a meeting entitled “Arrest and Conviction Records as a Barrier to Employment” in which they addressed the problems associated with criminal records.  Although the EEOC has not yet reached a conclusion, the improper use of criminal databases was a major topic of discussion. 

There are many screening companies that do not share our philosophy of only conducting complete and up-to-date criminal searches.  They feel contemporaneous notification is fine.  Some of the largest screening companies in the country do this.  They just build into their budget the fact they will have to fight consumer related cases when they come up. 

So, be careful when a salesperson from another screening company tells you he can obtain criminal records in 24 hours and for less money.  They are probably trying to sell you a database search only.  Or they will say they do a courthouse search if the database comes up with something.  But of course this doesn’t alleviate the problem.  If they don’t automatically do the courthouse search (or the reputable state repository search) each and every time then the issues we’ve discussed still exist.  Best to live by the old adage “caveat emptor” -- “buyer beware.”