You have found a great candidate and are thinking of making the job offer. You have interviewed the person and checked on references. It is likely you have heard of companies running a criminal background check, but where and how you ask. It must be simple. People just refer to it as ‘running’ a criminal background. How complicated could it be?
The reality of the situation is there is a lot more to know than you think. And what you don’t know will hurt you.
TO START
To start, there are several types of criminal background checks:
- County courthouse searches
- State-wide database searches
- Nationwide database searches
County Courthouse searches are usually viewed as the most accurate. In this search, a person from the Background Check Company goes to the courthouse and looks up the candidate in the county courthouse records. These records are usually updated on a regular basis by the county and are likely to have current information. These records provide details of arrests and convictions such as the original charge, the amended charge, the year, probation or not, and a short description. This type of search will typically cost about $30 – $50.
State-Wide Searches rely on a computer database search from the counties within a State. Kentucky offers this search for its 126 counties for $15. This is often a good type of search to do in conjunction with the county search listed above, but I don’t feel it is as good as a CountyCourthouse check. This type of search is a database search and as such is dependent on timely and accurate input of case information from many counties, some of which are quite small.
Nationwide database searches- These are the most unreliable searches in my opinion, but can give you a broad-brush approach to records existing throughout the U.S. for a potential candidate. These are the type of ‘instant searches’ you may have seen on the web. These searches do not send a person to the courthouse, but instead rely on the searchable databases in each county, in each state across the U.S. The issue with this is often the information is not input in the system on a timely basis and many times there will be errors or omissions on these reports. These are still fine reports to use to compliment a more detailed records search and helps ensure you have looked at all the correct counties. These reports costs anywhere from $7-$10.
CHOOSING COUNTIES TO SEARCH:
How do I know which counties to choose? This is not an exact science, but usually a ‘Social Security Trace Report’ is run with the background check company to find out where the person has lived during the past seven years. You can then compare the results to the addresses where the candidate lived as indicated on the job application to check for more locations. However, many times a county where there has been a criminal issue will not be listed on the resume.
NOW WHAT?
You have selected the counties where the candidate has lived during the last seven years and obtained the criminal background report. There is still some important information to consider:
- Most companies only consider convictions during their review. Considering arrests could have a disparate treatment to certain groups within your community. However, it is fully within your right to consider arrests if they show a substantial pattern or risk. Proceed with caution on this one when establishing a background check policy.
- It is often difficult to discern between Misdemeanors and Felonies. Be careful to know for sure what the conviction class ended up being. Sometimes the charge is a felony, but gets amended down to a misdemeanor. In Louisville, for example, it may appear as a Felony, but if the conviction is in District court, all convictions are actually considered Misdemeanors.
- Most companies do not consider dismissed charges.
- Consider the nature of the conviction and age of the conviction. Perhaps there is a conviction 6-7 years ago for theft of a tire. Perhaps that was when the candidate was a teenager. Nothing in the record shows a recurring issue and the position you have does not deal with cash, checks or assets. You may choose to omit this conviction from your hiring decision.
- If you are using a third party, you have obligations under the Fair Credit Reporting Act which includes informing the candidate if an adverse hiring decision based on the criminal background report will be made. They have the right to a copy of the background report and a certain timeframe to act on the report. Since there are many aspects of the criminal background check process subject to error, your candidate deserves the right to check into the report if they feel it is inaccurate. Speak to an attorney about your obligations.
- A few years back, local counties no longer allowed a person to be looked up by their social security number. This issue is a huge problem and requires the lookup in the system to be by NAME and date of birth leaving all sorts of room for errors or mistaken identities. When uncertain if the conviction is for the right person, often the county clerk can use their authority to look up the person by social security number to be certain you have the right person.
- Be careful with maiden names. In light of the fact that most county searches are performed by the Background Check Company by NAME and date of birth only and not social security number, you may have to pay for two searches. Sally Married-name may not show any criminal records, but Sally Maiden-name may show a conviction. Be careful and ask questions.
Criminal Background checks are worthwhile to perform as they give a glimpse into the background of potential new employee. Be sure to have the facts so you use this tool properly. Make sure to inform the candidate the job is offered contingent on an acceptable criminal background check, make sure to consider convictions only as it relates to the position at hand; and as a rule of thumb only consider convictions for the last seven years. If you apply these standards you will have given yourself one more opportunity to get the next hire right!
Talis Group will be glad to give you our advice when hiring from us. We understand the rules and requirements and the risks to your company by not considering new EEOC guidance on the topics.