Why Employers Should Never Use FBI Background Checks

I can’t tell you how many times I’ve discussed this topic, it has to be in the hundreds.  There is so much data out there now to prove the points and still, sometimes it’s an argument.  The argument is simple: name based background checks (like those offered by our industry) are far superior to FBI fingerprint based checks.  There are a lot of reasons, here are several of them.  While I’ve written countless articles on the topic and have testified in courts, depositions and even in front of State Legislatures, I wanted to again get my thoughts in one place, hence this new blog.

FBI database records are not a good solution for any employer, contractor, volunteer organization or even the government itself.  I am going to say that again, but slowly this time “FBI database records are not a good solution for any employer, contractor, volunteer organization or even the government itself.” 

Here is why:

• A screening performed through the FBI database can only be done if the organization has the legal authority under statute.
• A fingerprint search is not investigative, it only reflects information received by the FBI from States and Municipalities.
• If a State or county fails to report arrest records or a court disposition then that data will not appear on the FBI identification record. This reliance on arrest and court records, coupled with the passive collection system can lead to a large number of incomplete files.
• FBI results are contingent upon the consumer having his/her prints taken by an approved vendor as well as FBI processing times.
• There is no single government database that contains complete and up-to-date records regarding a person’s criminal history.
• Source information sent to the FBI is not done so in real time and in some circumstances may only be done quarterly or yearly.
• Most FBI records do not contain final dispositions.
• The FBI record system was not created as a screening tool but an investigative tool for law enforcement.
• The current infrastructure for applicants to get fingerprinted and transmit them to the proper channels is highly fragmented and unfair to consumers.

According to a study done by the National Employment Law Project in July of 2013, one in two FBI records is flawed, penalizing the job search of more than 500,000 workers per year.  The FBI system is missing approximately 50 percent of its records.  It identifies this lack of disposition information as a serious issue. This situation shows no meaningful signs of improvement. The study goes on to say that since the FBI records only contain arrest information, the lack of disposition is hardly inconsequential.  About one-third of felony arrests never lead to a conviction.  Furthermore, of those initially charged with a felony offense and later convicted, nearly 30 percent were convicted of a different offense than the one for which they were originally charged, often a lesser misdemeanor conviction.  In addition, to cases where individuals are initially overcharged and later convicted of lesser offenses, other cases are overturned on appeal, expunged, or otherwise resolved in favor of the worker without ever being reflected on the FBI rap sheet.

Simply using the FBI national fingerprint system would have proven itself to be inadequate, missing important criminal history information and harming consumers because of the extreme lack of disposition information.  According to a recent study done by the United States Government Accountability office, only 22 states reported having dispositions on more than 75% of their records.  Nearly 1 of 4 arrest records found lacked the important detail found in a disposition including if the individual was convicted or not.  Ten states reported that 50 percent of their arrest records had final dispositions.  FBI officials noted that it is not possible for states to have 100% complete records because it can take more than 1 year for criminal felony cases to conclude and disposition information to be entered into criminal record systems.  According to the GAO study there are several reasons the FBI records lack dispositions, these include: Prosecutors not reporting final case decisions, Fingerprints not collected under cite-and-release practices, and Case numbers not transferring among local agencies.

In conclusion using CRA is not only a more accurate way to provide users with background screening reports, it also provides the consumer or applicant with protections including, but not limited to privacy, accuracy, an avenue for disputing records in a timely fashion, and confidence employers are only using up-to-date information to make their decisions.  The background screening industry has a rich history of accuracy, reliability and oversight that also includes an industry accreditation program.  The National Association of Professional Background screeners (NAPBS) was created in 2003 after several years of groundwork to provide standardization, consistency and education to the marketplace on the use of background checks.  Background screeners, as defined by the Fair Credit Reporting Act (FCRA), are called Consumer Reporting Agencies (CRA’s).  The FCRA is a consumer protection law that provides consumers with very specific rights as it relates to their public record information when used in an employment situation.   After a prospective employee or volunteer reads and signs their background check disclosure and release they are also provided with a summary of their rights under the FCRA.  Simply put, they are giving their consent and are very clearly provided with their rights. Once this is completed, the gold standard of screening processes begins.