it's a crime
TRANSCRIPT
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It’s a Crime!Solve the mysteries of criminal
record searches
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Presenters
Bret Jardine, ESQ
Theresa Preg. Product Management
Kerstin Bagus, CIPP C, EU, US
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Agenda
• What are we talking about when we ask for a
criminal records history in employment screening?
– What are the rules?
– Where do you search?
– What does it cost?
– How long does it take?
– How do I read the results?
• Recommendations
• Questions & Answers
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Criminal record histories and employment screening?
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Life Cycle of Criminal Record Information
From the time of an arrest to the time of a
conviction at trial to an appeal – many different
record documents are generated
• Police report – Arrest Records
• Fingerprints
• Criminal Complaint/Information
• Warrants
• Juvenile records
• Convictions
• Dismissals
• Appeals
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Where are These Records Located?
• Law Enforcement Booking Files – Arrest Records� Local Police, County Sheriff , State Troopers, FBI / US Marshall
• Courthouses - Administrative Office of Courts – Federal District Courts� Criminal complaints/information/indictments� All records relating to the pleadings of a criminal case� Orders of convictions – sentencing – appeals
• Departments of Corrections� Jails, prisons, holding facilities� Inmate records
• Special Repositories� Sex Offender Registries� State Abuse Registries� FBI / NCIC
• Proprietary Databases� Commercially aggregated criminal records databases
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How are the Records Stored/Accessed?
• Electronic Storage
• On-Line Access Systems
• Paper Copies
• Indexes
• Court Clerk Assisted Searches
Varies by Courts and Jurisdictions
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Type of Searches
• Courthouse Search
• State Repository Search
• Database Search
• SCJIS Search / FBI Search /
Fingerprint Search
• Combination
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Information Needed to Request a Search
How to match a consumer to criminal record history information?
At least 2 full matching Identifiers are needed
for a Consumer Reporting Agency (CRA) to
provide a reported record*
*FCRA accommodation / industry standard
What Identifiers can be used:
• First name, last name, middle name
• Date of birth
• SSN – if provided & included in record
• Addresses – limited use
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What are the rules?
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Rules
FCRA State
Data Privacy
Country
Ban the Box
Data Transfer
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� Consumer Reporting Agency (CRA): The third party screening company which provides consumer reports has to comply with the Fair Credit Reporting Act (FCRA)
� Employer Responsibilities: By using a CRA for screening employee applicants, employers need to comply with the FCRA as well
� Tell the applicant or employee that the information in their consumer report might be used for decisions related to their employment. This notice must be in writing and in a stand-alone format.
– The notice cannot be in an employment application. Some minor additional
information in the notice, like a brief description of the nature of consumer
reports, but only if it does not confuse or detract from the notice.
� Get written permission from the applicant or employee.
� Certify compliance to the background screening company that the employer:
– notified the applicant or employee and got their permission to get a consumer
report;
– complied with all of the FCRA requirements; and
– will not discriminate against the applicant or employee or otherwise misuse the
information, as provided by any applicable federal or state equal opportunity
laws or regulations.
Rules in the United States
FCRA
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• Prior to taking an adverse action based on the background check, the Employer must provide the applicant with a copy of the report of the background
screening and the FTC’s “Summary of Your Rights Under the Fair Credit Reporting Act”
• After the adverse action is taken, the employer
must provide the applicant with notice of the adverse
action, the name, address and telephone number of the CRA, and inform the applicant that he/she has
the right to obtain a free copy of the background
check report from the CRA and to dispute its accuracy.
Rules in the United States continued
FCRA
Employers that do
not comply with
the FRCA could be
held liable for
damages,
penalties, and
attorneys’ fees.
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• Issues regarding discrimination regarding the use
of Consumer Reports has become more prevalent.
• Improper use of background checks can lead to liability for discrimination under Title VII of the Civil Rights Act of 1964 or state or local laws prohibiting discrimination.
� The EEOC has concluded that because there is a higher rate
of contact with the criminal justice system for people of certain
races and national origin, basing hiring decisions on criminal
background can be discriminatory.
� In addition, background checks that reveal information relating
to other protected classifications can be used as evidence of
discriminatory motive.
Other Rules to Consider
Other Concerns
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45% of Your Searches May be Out of Country
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Global Criminal Record Rules
Different
• Source
• Search requirements
• Turnaround Time
• Cost
• Results
• May require “local” consent language
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Something to Think About
Just because data is available, should you use it?Data can be available from a different part of the world, but it may not be useable for your purpose.
Make sure your vendor helps you know what is TRUE:
• Travel worthy: Can the information be obtained by a third party and exported out of the home
country? What, if any, restrictions are there on cross border transmission, results, and data
retention.
• Reputable: Is the search available from a reputable and reliable source that has met vendor audit
standards.
• Useable: Does the originating source allow the information to be used for employment or resident
purposes? It’s not uncommon for information to be available but to be restricted for the source that
we wish to use it for. For example, an attorney can get criminal history from the courts in Germany
but that is only for the purposes of the case and not for employment purposes.
• Exact: Are there issues with accuracy or identifier matching? If the only source of the information
is a name match only search the results may not be accurate or meet local law requirements and
your expectations.
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It’s There but We Can’t Get It
Ireland. The Irish Garda criminal records
search is only available to employers who
are hiring individuals who are caring for
the vulnerable.
Poland. The criminal record search
may only be done on positions
where there is a regulatory
requirement to do so.
Japan. Governmental entities will
not disclose criminal records to any
party except for the data subject.
Certificates are only issued for the
purpose of immigration/visa or on
the request of an official
government institution.
Singapore. The Singapore search is
only available to a Singapore citizen
who is a non-Singapore resident and
who is applying for a position with a
regulatory requirement of a criminal
history search.
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Where do you search?
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Define and Refine the Scope
• Obtain addresses and places of employment from applicant
• Use Social Security Number Verification tools to identify
geographies not revealed in applicant’s provided information
• Conduct database searches – proprietary or otherwise
• Use tools and filters: name variations confirm matches, common
names
Broad net
criminal
database
search
Any
additional
addresses
shown from
verification
tools
The
locations
where they
have lived
the past 7
years
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Top 5 Searches Ordered
1. National Criminal Database Search
2. County Courthouse Search (single court
location)
3. County Courthouse Search (multiple court
locations)
4. Federal Districts Court Search
5. DOJ National Sex Offender Registry
Source: First Advantage, June 2014
Most Frequently Ordered Criminal Searches
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Begin with a Broad Net: National Criminal File
KEY BENEFITS:
• Helps uncover names not reported by the candidate: aliases, maiden names, etc…
• Enhances the possibility of identifying unreported criminal records
• Provides address history associated with the SSNV
• Search is conducted within seconds
• Results are returned in an easy-to-read format
Using advanced proprietary technology, the First Advantage National Criminal File PLUS
searches a database of more than 332 million criminal records for:
• Name, date of birth & Social Security number provided by candidate
• PLUS, additional names associated with the candidate’s SSN
Helps find criminal records listed under aliases, nicknames & maiden names
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Approach with Many Nets
National
Criminal
File
Counties or
State Level based
on addresses provided/developed
Counties or
State Level based on current address/state of
residence provided
Federal Court district searches based on
addresses provided
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All Addresses for Past 7 Years . . . Most Used Scope
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What does it cost?
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Example Costs
Nat. Criminal Database Search $25.00
Statewide Criminal Search $18.00
County Courthouse Search $12.00(felony including misdemeanor)
County Courthouse Search $14.00(felony & misdemeanor)
Federal Courthouse Search $12.00(felony & misdemeanor)
Global Sanctions Search $11.00
National Sex Offender Registry $15.00
State Sex Offender Registry $12.00
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How long does it take?
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Average Turnaround Times
State Sex Offender Registry
Federal Search
National Criminal File
National Sex Offender
Registry
12-48hrs
County Criminal Records
24-72hrs
Statewide Criminal Search
Instant-12hrs
12 hrs 48 hrs24 hrs12 hrs 32 hrs 72 hrs
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Turnaround Time Considerations
Court jurisdictions and state central repositories across the country have various
methods and requirements for conducting criminal history searches:
• Fulfillment times can be impacted by a requirement that the court clerks must conduct the search
or at state level – law enforcement agency must conduct search
• Jurisdictions may limit number of searches that can be submitted
• On-Line systems may provide only partial information on case, and additional research must
be conducted at court level or alternate manual review
• Records may match on name and date of birth to multiple offenders. Court cases need to be
pulled to identify additional matching criteria
• Unexpected issues at the courts (weather, fires, system moves, or location moves).
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How do I read the results?
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Some Averages
Top 5 Criminal Record Search Hit
Rates by State
Country Hit Rate
Kentucky 15.9%
North Carolina 10.4%
Indiana 10.2%
Minnesota 8.6%
Tennessee 8.3%
Top 5 Criminal Record Search Hit
Rates by Country
Country Hit Rate
Australia 4.12%
New Zealand 1.85%
South Africa 1.18%
United Kingdom 1.11%
Canada 0.54%
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Sample Report for Armed Robbery
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Screening Results
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Litigation and Reputation Risks Drive Screening
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Determine Your Risk Tolerance
• Will the individual regularly interact with the public?
• Will they have access to at-risk populations, such as children or the elderly?
• Will they have access to sensitive customer information?
• Will they have access to sensitive company information?
• Does their professional licensure require criminal screening?
Recommendations
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Determine Your Risk Strategy
• Create screening packages
• Consider minimum industry requirements and standards
• Ensure configurability
Review plan with legal counsel to ensure your program you are building is compliant worldwide.
Recommendations continued
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Equal Employment Opportunity Commission• Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights
Act of 1964
� http://www1.eeoc.gov/laws/guidance/arrest_conviction.cfm
• Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and
Conviction Records in Employment Decisions Under Title VII
� http://www1.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
Federal Trade Commission• Summary of requirements when disposing background screening information.
� http://www.consumer.ftc.gov/media/video-0026-employee-background-checks
• Video geared towards job applicants. Provides helpful information for employers.
� http://www.consumer.ftc.gov/articles/0157-employment-background-checks
• Advice geared to the data subject (consumer). Provides helpful information for employers.
� http://www.consumer.ftc.gov/articles/pdf-0044-employment-background-checks.pdf
• The Fair Credit Reporting Act & social media: What businesses should know
� http://www.business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know
• Using Consumer Reports: What Employers Need to Know
� http://business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know
US Resources
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Federal Interagency Reentry Council• Reentry Myth Buster: Criminal Histories and Employment Background Checks
� http://csgjusticecenter.org/wp-
content/uploads/2012/11/Reentry_Council_Mythbuster_FCRA_Employment.pdf
US Small Business Association• Conducting Employee Background Checks – Why Do It and What the Law Allows
� http://www.sba.gov/community/blogs/community-blogs/business-law-advisor/conducting-
employee-background-checks-%E2%80%93-why-do-
• Facebook, Credit Checks, Criminal Records? Where the Law Stands on Employee Background
Checks
� http://www.sba.gov/community/blogs/facebook-credit-checks-criminal-records-where-law-
stands-employee-background-checks
• Pre-Employment Background Checks
� http://www.sba.gov/content/performing-pre-employment-background-checks
United States – California• State of California Department of Justice – Office of the Attorney General Workplace Privacy &
Privacy in the Job Search
� https://oag.ca.gov/privacy/workplace-privacy
US Resources continued
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Questions?
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(866) 400.3238
www.fadv.com
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