Compliance Corner: Internet-based Screening

PLEASE NOTE: The following is presented as general educational information. It is not legal advice, either express or implied. Consultation with your legal counsel is recommended for all employment law matters.

A question commonly asked of the Compliance Department is: “Other screening companies offer faster, less expensive, and sometimes instant Internet-based screening. Why doesn’t Verifications?”

Typically there are two primary reasons: 1) These types of searches do not meet compliance requirements in 12 US States, and 2) The results may be misleading and/or incorrect.

Internet-based online screening, especially when provided as an instant search, is typically database driven. Although often labeled as a “national search,” national is a misnomer. There is no single database anywhere which contains all criminal records. Even the FBI does not have such a database. Although Verifications uses “national” databases as locator devices, we do not report the actual information which we find in the database search. Why?

The first problem with these databases is that they are incomplete. Most of these databases are developed commercially and contain hundreds of millions of records. To obtain these records, database companies purchase copies of records from local, county, state, and federal entities and often add incarceration, law enforcement, and sexual offender records. Criminal information from newspapers, periodicals and other sources is sometimes added to databases. The result is an immense number of records, but not all criminal records. This is because some entities refuse to sell a copy of their records; others may sell their records once but not sell an update.
The second problem is the database may contain records which are misleading or incorrect. Why? The information was accurate only at the point in time when purchased from the information source. Since the time of purchase, it may have changed. The record may have been expunged; a case may have been “stayed,” meaning an alternative adjudication occurred without a judgment of guilt or innocence and upon completion of the “stay” period, the record may have been dismissed; the record may be incomplete, such as an arrest without any further information.
The third problem is that these perceived “national” criminal searches may result in a false sense of security and, as a result, other due diligence may not be conducted.
The fourth problem is “false positives” and the difficulty ordinary consumers have in getting the content of the database corrected – while their employment opportunities are compromised.

Recognizing the inherent problems of these databases, the Fair Credit Reporting Act (FCRA, U.S.C. 1681 et seq.) imposes a special requirement on providers of this type of information. If providing any potentially adverse information to a prospective employer, the FCRA requires the database provider at the same time notify the applicant that the information is being reported and provide the name and address of the person receiving the information. If the applicant wishes to dispute the information which will be part of the report, the database company is supposed to work with the applicant to correct the error. Whether either of these requirements is met by many database companies is unknown.

In addition to the FCRA, 12 states have their own version of the FCRA which imposes a requirement similar to: “… the consumer reporting agency shall follow reasonable procedures to assure maximum possible accuracy of the information…” It seems difficult to assert that using the type of database described here represents “maximum possible accuracy.”

A more appropriate and compliant use of such databases is as a “locator” device. If possible criminal records are found, these records should be researched in the jurisdiction of origin. This practice enhances standard county and federal district searches which are based on the applicant’s residential, employment, and school attendance history.