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Background Checks

Are fingerprint-based FBI background checks better than “traditional” background checks?

Are fingerprint-based FBI background checks better than “traditional” background checks? That question resurfaced recently due to a civil suit regarding Uber’s background checking practices in San Francisco and Los Angeles. (If you haven’t heard of this case, Sarah Kessler’s recent article in FastCompany provides a good overview.)

As head of background-checking company GoodHire, I revisit this question often. And the answer is far more complicated than the soundbites traded by attorneys in the case indicate.

That’s largely due to basic misunderstandings about both the FBI database and the services offered by employment screening companies, which check records at national, state, and county sources.

How FBI Fingerprint Checks Work

The FBI maintains several databases of information associated with people’s fingerprints. In 1999, the government opened access to authorized state agencies and channel partners s for purposes (including employment screening) other than criminal justice investigations.

Fingerprint background checks typically involve searches against state and federal Department of Justice (DOJ) records. Fingerprints can be taken and submitted electronically (through LiveScan technology) where available. If LiveScan isn’t available (or the scans weren’t adequate), fingerprint cards (with prints taken at a local police department) can be mailed in. If prints need to be retaken (due to smudges or other problems), the job candidate will have to schedule another visit to the LiveScan location or police department.

Information in this database is compiled from criminal records submitted to the FBI from state agencies as well as from FBI investigations. Fingerprints submitted for background checking are run against the records in the database. If submitted via Live Scan, this process that can take a few days. If the prints are rejected and need to be rerun (or if they’re submitted on fingerprint cards), the process can take a few weeks or longer. If nothing is found, a written statement to that effect is sent to the organization that requested it.

How Source-Based Background Checks Work

Source-based criminal records checks are based on a person’s name and, if attached to the record, social security number. Using that information, along with date of birth and past addresses, background checking companies search a variety of data sources, including online state and county criminal records, sex offender lists, and terrorist watch lists.

The most thorough searches include in-person searches at county courthouses, because only a fraction of counties in the U.S. make criminal records available online. In-person searches add a few days to the background check process but return the most complete and up to date records available, as they are sourced from the very courts where the records originate.

Why Fingerprint Background Checks Aren’t Enough

Some positions, such as those that require government clearance or that involve working with children or the elderly, transportation jobs, may require fingerprint checks. For other jobs, fingerprints likely feel intrusive.

But the psychological impact and the extra time involved are minor considerations. More pressing are the concerns raised by organizations such as the National Employment Law Project (NELP) and the National Association of Professional Background Screeners (NAPBS), including:

Accuracy and completeness. Despite the FBI database’s reputation as the “gold standard” for criminal background checks, a 2013 NELP study pointed out that 50% of the records in the FBI database are missing disposition information. That means a background check could return arrests for which a person was later cleared, or charges that were later reduced (from felony to misdemeanor, for example).

Although a 2015 study conducted by the Government Accountability Office (GAO) found that the completeness of FBI records had improved since 2006, gaps still exist. Only 20 states reported that more than 75% of the records they submit to the FBI included disposition information as of 2012. And 10 states reported that 50 percent or less of the records submitted contained disposition information.

Few people realize that the FBI database isn’t a complete cache of all criminal records. For one thing, the FBI relies on states to submit their records. Yet, as an article in the Washington Post pointed out, state repositories also lack disposition data, and lag times on reporting range from 1 to 555 days.

And not every criminal record is associated with a fingerprint. Because the FBI’s III only accepts records tied to a fingerprint, an FBI check won’t return records that lack a fingerprint. NAPBS also points out that “not all state criminal records or fingerprints meet the FBI’s standards for inclusion in the III, and not all state records are submitted to the FBI.”

The best source for complete records that include final dispositions? The county courthouses where the information is recorded.

Fairness. One of the major issues with the lack of complete disposition information is the disproportionate effect on minorities. NELP explains it this way:

African Americans are especially disadvantaged by the faulty records because people of color are consistently arrested at rates greater than their representation in the general population, and large numbers of those arrests never lead to conviction.

That disparate impact on minorities raises an additional concern. Recent guidance from the Equal Employment Opportunity Commission cautions employers to:

…employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.

One final fairness issue: Fingerprint-based background checks aren’t governed by the Fair Credit Reporting Act (FCRA), a federal law that protects how the personal information of individuals is acquired, used, and maintained to ensure privacy and avoid discrimination. All employment screening conducted through third party companies must comply with this law.

The FCRA offers job seekers several protections. For example, it bars background checking companies from reporting arrest records that are older than seven years (unless the job seeker is likely to make more than $75,000 a year), though convictions can be reported. (Many states, including California, have enacted even stricter protections.)

If an employer decides not to hire a candidate based on something uncovered in a background check, the FCRA requires that the candidate be notified and given an opportunity to review the information and dispute any inaccuracies.

Fingerprints Have a Role, But They’re Not Foolproof

Fingerprint background checks do offer two advantages over source-based screening: They ensure that the record really belongs to the person whose fingerprints were submitted, and they offer an option to monitor for subsequent arrests or convictions that would allow notification of an arrest within a day.

Sometimes, incorrect records surface when two people share the same name and date of birth. That’s why the FCRA-required dispute process is so important. Fingerprint checks also prevent an applicant from using someone else’s identity on an application.

But the truth is that there is no such thing as a 100% foolproof background check. It’s impossible for a background checking (whether it’s done through the FBI or by a private company) to cover every possible record and every court jurisdiction where a person may have spent time at some point in their lives.

What we can do is to follow industry best practices when performing investigations to reasonably ensure the maximum amount of coverage of a person’s criminal history.

So, What’s the Answer?

As employers’ and society’s needs and expectations change, I’ll continue to follow the fingerprint debate. As a company, we continue to review the pros and cons of adding a fingerprint background option to complement our standard services.

Max Wesman

 

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