Opinion: Trends, Risks in Criminal Background Checks

By Lana Batts and Billie Lee

Co-Presidents, Driver iQ

This Opinion piece appears in the Feb. 4 print edition of Transport Topics. Click here to subscribe today.

Lawsuits, class-action suits and civil penalties” are not the words carriers want to read at the beginning of an op-ed in this newspaper.

However, over the past several months, we have been alerting carriers to the ever-changing legal trends in the background-screening industry. Specifically, we have been notifying them of the changes brought about by recent Federal Trade Commission fines levied for violations of the Fair Credit Reporting Act, a class-action lawsuit that has been settled covering the same issues, pending lawsuits and recent decisions and pending cases at the Equal Employment Opportunity Commission, which released new guidance last April.

Basically, the issues fall into two categories:

• The pitfalls in using commercial databases exclusively for criminal history record checks.

• The need to allow potential employees to rectify incorrect information and explain why a past conviction is not relevant to the current job offering.

With the advent of the Internet, it has become easier for carriers to access an individual’s criminal history by going directly to the Internet or by using background-screening companies that rely on the Internet or database searches.

Unfortunately, while these searches are fast — and cheap — they are far from complete, up-to-date or accurate. Most have only scattered court information for many states and, in the case of 10 states, very little information at all when you discount sex-offender information and count only data coming directly from individual courts or official state court administrations.

By their very nature, database searches represent a single snapshot in time. “National” databases are composed of material from many different sources, each updated at different times. Any database search on its own cannot be considered “up-to-date” or

“current,” and thus does not meet FCRA compliance obligations unless it is coupled with a copy of the report provided to the applicant at the same time it is provided to the employer, or an

up-to-date criminal history search is performed.

Relying solely on “national” database information is a guarantee of receiving only partial information — at best — and therein lies the danger of errors that may result in costly civil litigation.

Even if the issues of currency and variance in record content could be addressed, there is the issue of coverage. There are 94 U.S. District courts, none of which is covered in these “national” databases, and there are slightly fewer than 3,100 counties that house state-level offenses — plus more than 30,000 incorporated towns and cities in the United States, many of which house municipal-level courts.

Most of these state-level and municipal courts are not fully represented — or represented at all — in any “national” databases.

The question that courts and the EEOC are beginning to ask is, “How can one rely on a product with known significant deficiencies such as the ‘national’ database standing alone and still pretend to be in compliance with FCRA?”

One can assume that, as regulatory agencies under the Obama administration and plaintiff’s bar become even more aggressive, employers using such dangerous databases will be dragged into court.

Managing your company’s background screening program is managing risk. Since different companies, and different positions within companies, have different levels of risk and risk tolerance, each company and position may require background checks of a different scope. The clear path to avoid being mired in litigation is never to allow a background provider to sell you a stand-alone “national” database search without verifying the results by going to official government repositories.

While the FCRA provisions are about the accuracy of the data, the EEOC’s new guidelines are all about explanation, or individual assessment — i.e., allowing the candidate to explain the circumstances in the record and what has happened since the conviction. Such explanations can show evidence of rehabilitation and productive behavior since the conviction or incarceration, and explain why he or she deserves an opportunity for the job despite the previous transgression prior to making any adverse hiring decision.

Carriers cannot get around either of these provisions by means of a general rule prohibiting the hiring of convicted felons. The new EEOC guidance clearly forbids blanket exclusions from hiring for all criminal offenses. The EEOC’s new guidance is about making sure that the offense is related to the job as outlined in a job description.

Without a concise job description, carriers would — hypothetically — be hard-pressed to deny a driving job to an individual convicted of dogfighting unless they were a livestock carrier. Denying a driving job to a pedophile would be difficult unless the company’s job description reflected that the driver might be in contact with young people.

The EEOC provides guidance regarding the factors that should be considered and requires an individual assessment of those factors before a final hiring decision is made. As with the FCRA process, there are clear steps in providing notice and gathering required information. Once again, the key to avoiding litigation is to develop a structured, gated process that carefully guides the hiring manager through the correct steps while not allowing a missed or premature step. A well-designed and implemented rules-based system will guide hiring managers through intricate legal requirements while protecting them and their company against avoidable legal complications.

With the proper planning and implementation of best practices by legal counsel, the background provider and the company’s internal stakeholders, carriers will be ensuring FCRA and EEOC compliance, significantly reducing the risk of costly litigation.

Driver iQ, Tulsa, Okla., is a background screening company that focuses on the trucking industry and its drivers and is accredited by the National Association of Professional Background Screeners.