Caveat Emptor: The Myth of the 'Permanent Record'

August, 2004

South Beach, FL, resident Michelle Linale was enjoying her lunch experience at a local restaurant when she handed a South Florida Parking valet her ticket. A valet supervisor returned a half-hour later with bad news: The valet had smashed her car a half-mile away. A Miami police officer had witnessed the whole thing, and told Linale that if she had seen what he had, she would have grabbed the valet by the neck because of the way he was driving her car. A background check later revealed that valet Alexis Jorge had multiple violations, including leaving the scene of a crash, careless driving, failure to observe a stop sign and failure to obey traffic signs. His license had been suspended twice, but had just been reinstated the day of the crash.
Separating 'good' from 'evil'
Remember the innocence of childhood? The world was simple, with clear divisions between good and evil. Behavior was influenced by the perceived rewards and threats of imaginary beings, such as Santa Claus and the Boogeyman. When we reached school age and crossed the line of acceptable behavior, we were quickly introduced to the concept of the "Permanent Record," which would have all sorts of implications on the rest of our lives if we weren't diligent caretakers of it. At varying points in our maturation, we all learned that there were logical, scientific explanations for most of these fantastic imaginary childhood notions.
With the advent of technology and the Internet, the concept of the "Permanent Record" has been reborn among adults, based primarily on the existence of many low-cost, instant background checks. A quick visit to any online search engine will reveal dozens of background-check vendors advertising "proprietary databases (filled with) millions of criminal records (covering) statewide (or) nationwide territories (with) instant results" -- and $10 price tags.
In reality, there is no national database of "Permanent Records" that can be checked to "clear" a person of previous criminal activity, There is no all-inclusive list where one could look to see if the "Permanent Record" of an individual remains unblemished, giving that person the "thumbs-up" for hiring. The primary source of criminal-history information is the county courthouse, and it keeps records on only those who have violated the law within its jurisdiction. When someone breaks the law and gets caught, they are typically arrested, prosecuted, and convicted or dismissed according to the laws and procedures of one of more than 10,000 courts spread among more than 3,500 counties across the country.
With this many local sources of criminal records, it would be extremely challenging to assemble a comprehensive national or even state database containing current records of every arrest, conviction, disposition and expungement within its defined territory. Even state-sponsored criminal-history repositories lack the authority to mandate that every county within their jurisdictions report to them, or to regulate the timeliness of updates for those counties that do. To think a private company's "proprietary database" could assemble better information is dubious at best.
Making sense of a sea of records
Think of a beach, just a small one, with each grain of sand representing a criminal arrest, conviction, disposition or expungement, and with each area of the beach representing a different part of the country. If I walk around that beach and collect random scoops of sand from each area, I now have a repository representing records from all areas of the beach -- or the country. I can call this a nationwide repository, and the less effort I put into updating it, the less I can charge for access to information within it. However, there are many, many records from around the beach that I do not have, from all areas, and I cannot even be sure that for any given arrest record that I also have the corresponding conviction record, which may have been plead down or dismissed. There are two significant risks with this repository:
1. You hire an applicant with a "clean" record based on a statewide or nationwide criminal-history check. That employee then assaults a customer or co-worker, and a history of assaults exists in a former county of residence where records were not updated to the statewide repository. Your company could be held liable for not having conducted a reasonable Fair Credit Reporting Act-compliant criminal background check.
2. You deny employment to an applicant based on an arrest record reported by a statewide or nationwide criminal-history check. The original charge, however, had been pleaded down or the entire record had been expunged at the county level. The applicant could hold your company liable for not using FCRA-compliant information.
How then do you conduct an efficient, FCRA-compliant criminal background check on a prospective employee? There is no feasible or cost-effective way to physically check every county courthouse within a state or, certainly, nationwide. It would also defeat the purpose to rely solely on the applicant's word to check only those courthouses in states where he or she has lived.
The best way to conduct a comprehensive FCRA--compliant criminal-history check is to obtain a 7- to 10-year address history through a Social Security Number Trace, or SSNT, and then use that to identify counties in which the applicant has lived, worked or gone to school to check for a criminal history at the county level. This ensures that any record obtained is current and FCRA-compliant, and provides additional identifiers to make sure you are not pinning the rap on the wrong person based solely on a name match (which could also invite employment litigation). Statewide repositories should be used only in addition to a county SSNT and with a clear understanding of its limitations.
If you are subscribing to the myth that a "Permanent Record" exists by conducting statewide or nationwide database searches as your sole criminal-history check on your applicants, remember: He's making a list, and checking it twice ...

Rob Thomson is an account executive for Cleveland-based Background Information Services (BIS). His background is in Human Resources payroll and benefits and in management consulting. He has an MBA from the University of lowa. For more information on BIS, visit www.employeescreen.com.