Are You Reading Your Criminal Record Check Correctly?

June 2017

If you perform criminal background checks as part of the screening process for new hires, it's critical that you understand what you're looking at. Making a decision not to hire a candidate because of information that was misinterpreted could leave your company open to potential legal liability and claims of employment discrimination.

Interpreting the Results

First, you should understand where the results are coming from that you obtain. The sources queried in a commercial background check could include county, state, federal, national or international criminal & civil history records. Additionally, thorough background checks may include reviews of federal court records, driving records, the National Sex Offender Public Registry, and the Office of Foreign Assets Control (OFAC), which the Department of the Treasury provides in order to aid in identifying those persons or entities which are known to be terrorists, money launderers and other people whom the US Government has generally identified as “prohibited parties.”

A complete commercial background check will examine your candidate's information against various databases and records, and will clearly indicate whether or not results were returned for each of the data sources.

Generally, if there are no results that match the information entered for your candidate, the report will indicate that the search was "clear" or that no records were located in the specific jurisdictions searched.

If there were potentially matching results, the criminal record report will indicate whether the results are based on a match of the candidate's name, Social Security number and date of birth. In some cases, the report may indicate that the results match your candidate's name alone. Although this may seem obvious, it is important to make sure that information returned on a criminal check actually relates to your candidate. If the background check queried records without Social Security numbers or other ways to ensure the record "belongs" to your candidate, it may be necessary to do a little homework before making a decision based on that information. Your consumer reporting agency (CRA) should be able to assist you in this endeavor.

Information returned on a commercial background check when a match was found will typically include:

The date of the offense or event

The case file number, if applicable

The jurisdiction (county/state where the charges were filed)

The charges, including whether they were felony or misdemeanor charges

Disposition of the charges, including any penalties or jail time

Using Results to Make Employment Decisions

When a commercial background check returns results about a candidate, you will have to review the results and make a determination about whether or not those results change your opinion about the candidate and his or her ability to perform the job you're filling. If you decide not to hire a candidate because of information you obtained on a commercial background check, remember that you may need to have a valid, job-related reason for making that decision. In order to avoid claims of discrimination in your hiring practices, be sure your rationale is solid, and document it for your files.

The Equal Employment Opportunity Commission (EEOC) provided updated guidance on this topic back in 2012 and we advise that you consult with your legal counsel regarding how best to use commercial background checks in an employment context. The EEOC recommends that you consider acombination of factors, including the nature of the criminal charges, the severity of the offense, the length of time that has passed since the charges and/or disposition of the legal matter, and the type and nature of the work for the position you're hiring.

For example, if you are evaluating a candidate for a position where the potential employee would be handling cash for customers and a background check reveals a previous conviction for fraud or theft with a previous employer, a decision not to extend an offer may be easy and obvious. However, choosing not to make an offer to a candidate for that same position because of a previous drunk driving conviction may be harder to justify, especially if the position does not involve any driving for the company.

Global Verification Network Can Help

At Global Verification Network, we can customize a thorough and accurate commercial background check package for your business, including all of the information that could be relevant to your hiring and retention decisions.

While this won't necessarily help you make the hard choices about whether or not to extend offers of employment, it can give you added confidence in your screening, and hiring, processes. To learn more, contact us today.

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