In my first blog post on the subject titled, EEOC_Background_Check_Confusion, I discussed the new EEOC ruling on acceptable use of criminal information during the background check.  Naturally, the ruling addresses disparate treatment of applicants, however, what I found interesting were the issues raise in a 2011 study by the Department of Justice/Bureau of Justice Statistics finding that a significant number of state and federal criminal record databases include incomplete criminal records.

The DOJ/BJS reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests. An earlier study in 2006, the same group studied the repositories and found only “50% of arrest records in the FBI’s database were associated with a final disposition.”

Even more disturbing is that criminal background checks may produce inaccurate results because criminal records may have misspellings, clerical errors, or delays in the recording process. They may be missing an update of the record, or have intentionally inaccurate identification information provided by the search subject who wants to avoid any type of discovery. 

Some states are trying to keep up with the record keeping process while others, due to funding issues or lack of personnel, are lagging behind.  A company’s background check partner can only get the content that is provided and, in some cases, it’s just not enough information or contains inaccurate data.  The technology for conducting background searches has improved, but in many cases, there are still significant errors. 

As an example, James B. Smith might be the applicant, but the technology will pull up Jacob Smith, John Smith and similar aliases. That means your background check partner has to be skilled in knowing where to find information (as good as what can be accurately found) and then “put their eyes” to the documentation to send you the appropriate data. The partner really has to understand the source of the record.   

I contacted a background check provider and we had a healthy conversation about inaccurate data.  Apparently there are states that try to keep records up to date but many just can’t. Expunging records is the lowest item on the totem pole for record keeping as the system just overwhelmed. He explained that employers are confused on what is adjudicated (dismissed), expunging information, and why arrests don’t really count. There needs to be solid training for HR by professionals who understand the nuances of the judicial system and how the information you receive is accurate.

Here are some additional sources on the topic:

–        National Consumer Law Center (NCLC): Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses, 2012

–        National Association of State PIRGs (U.S. PIRG): Mistakes Do Happen, 2004

–        National Association of Professional Background Screeners (NAPBS)

Mary Claire Ryan is a Partner with inTalent Consulting Group