In recent years, criminal background checks have become a vital part of the employment process, both as a means to help screen out undesirable or dangerous employees and job applicants, as well as to assist in hiring the best possible candidate. But the process of obtaining a proper background check is fraught with difficulties that vary from state to state and even county to county. The ideal background check must be accurate, comprehensive, consistent, timely and, of course, legal. Coordinating these factors is expensive and time-consuming, and the work involved differs depending on the location of the employee and where he or she has lived in the past. But getting the “best” background check possible is too important to the employment process to let budgetary or time constraints put limits on the process. Many background screening companies, along with the National Association of Professional Background Screeners (NAPBS), are focusing on developing “best practices” for conducting searches that address each of the five goals listed above. But because the background screening process is not regulated, employers that do not know how to evaluate a proper screening process may end up with a report that is either inaccurate, incomplete, or both. Although the range of employment and background screening services provided by background screening companies is very broad, the scope of this paper is limited to providing employers and other end users with information about the availability and limitations of criminal history data, including where it can be found, difficulties in obtaining accurate information, and strategies for being as thorough as possible. With this knowledge, purchasers of background screening products can be better consumers of criminal background information products.
Overview of Criminal Background Screening
Many employers perform background checks on prospective employees as part of the hiring process. Increased use of criminal background checks by employers to pre-screen job applicants stems from the growth of claims alleging that an employer was negligent in hiring or retaining an employee who subsequently engaged in workplace violence or some other act that results in harm to a person (e.g., sexual assault) or property (e.g., theft). The proliferation of negligent hiring and retention claims greatly increases an employer’s exposure for large damages awards, making the use of background checks not only a means to prevent violence by employees, but also a defense to liability should violence occur. Beyond this, many companies also are performing criminal background checks on current employees, either as a matter of course or prior to a promotion, transfer or other change in the terms and conditions of employment.