Criminal background checks help employers mitigate risk, create a safer workplace and protect themselves from negligent hiring lawsuits. This post will expand on what makes up criminal searches, the different types, and how to determine which searches are applicable for different job positions.
A criminal background check provides information about an individual’s criminal history. Employers use criminal background checks as part of a comprehensive screening process on potential hires and existing employees. These records help the employer assess the possible risk an individual might pose in their workplace.
The information that shows up on a criminal background check can include felony and misdemeanor court records, including deferred, pending, failure to appear and warrant information as allowed by the Fair Credit Report Act (FCRA).
In most U.S. states, crimes are divided into two broad categories: misdemeanors and felonies. The most significant difference between the two is the maximum punishment.
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Misdemeanor: Crimes punishable by fine and/or county jail time for less than one year. |
Examples: Shoplifting, trespassing, and simple assault. |
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Felony: Serious offenses that carries a penalty of incarceration from one year to a life sentence in state prison. It also includes the death penalty. |
Examples: Murder, rape, burglary, kidnapping, and arson. |
Note: crimes can be prosecuted as a felony or misdemeanor and felonies can be reduced to a misdemeanor at the sentencing. Crimes can be reduced over time via government legislation.
As an employer, you are liable for any harm that results from your employee’s negligent acts. Companies lose millions of dollars per year in lawsuits for neglecting their responsibility to keep their workplace, customers, and the public safe.
Negligent hiring lawsuits look at two things:
Did the employer exercise “reasonable care” in choosing or retaining the employee?
Did the employer place an employee, “it knew or should have known” predisposed to do wrong?
For example, suppose an employer was to hire someone, and they harmed another employee. In that case, the employer may face negligent hiring claims if it failed to conduct a reasonable investigation to discover if the individual could harm others or be fit for the position.
Performing criminal searches are considered “reasonable care” in choosing or keeping an employee. Not only does it help your workplace and customers safe, it also helps to keep you out of the courtroom.
Background providers like Orange Tree search databases and courts to find criminal information. Typically, the search will include national criminal and sex-offender databases, state and/or county courts, and federal districts.
Depending on the risk associated with the position you are hiring for and the industry you are in, certain checks will be more applicable than others.
For example, if you are hiring for a management position in finance, the person in this role would have access to your company’s financial information. In this case, you would want to include a federal check in addition to a state/county criminal search in your background check for any financial crimes such as theft and bank fraud. Some financial crimes such as money laundering are processed by the federal government instead of by county and state courts. Federal court records are separate from county and state court records.
However, if you are hiring for an entry level position that wouldn’t give your candidate access to your company’s financial information, you may just process a county / state criminal search.
The amount of information from a criminal search returned to your background provider depends on the scope, or the number of addresses and/or names searched, and the depth, or the number of years included in the search.
There are two avenues your background provider can use when performing a criminal background check:
Using a database of criminal records (database checks).
Directly searching the county, state and federal court records. We will expand on these below.
A database search includes criminal records from a variety of sources. Some vendors compile their own, some purchase information from an outside vendor, and some use a combination of these two approaches. Whenever acquiring this service from a vendor, you should ask about the data. What are the sources of this information and how often is it updated?
Database searches cover multiple jurisdictions over a long period of time. They include:
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National Criminal Records: Information is compiled from various sources, including but not limited to departments of corrections, administrative courts, and county court records (many but not all court records). Information includes open cases, convictions and dismissed/dropped charges. |
National Sex Offender Registry: Search of a national database of sex offender records. Note: this registry only includes individuals found guilty of a sexual offense or offenses. Therefore, it excludes open cases and dismissed/dropped sex charge(s). |
Database checks are a great compliment to a thorough county criminal history search. Orange Tree encourages clients to include this service on its background checks to identify convictions that might have occurred in counties where the person did not ever reside.
People travel for many different reasons and may commit a crime in a location other than their county of residence. And while asking a candidate to “self-report” criminal activity during the background check itself, an employer needs to take the necessary steps to discover this information independent of the candidate’s declaration.
After all, isn’t the essence of a background check to “trust, but verify”?
A database is a collection of many jurisdictions, though not all, and records may not be current and/or complete. For this reason, Orange Tree considers it a “record locator” only and not confirmation of a criminal record.
When a potential criminal record is found from a database search, the Fair Credit Reporting Act (FCRA) 613 requires the background screening provider to do one of two things.
Notify the consumer that public information has been found which may adversely affect the candidate’s ability to obtain employment. The consumer must also be told the name and address of the person who will be receiving the information.
Maintain "strict procedures" that ensures the information collected is accurate and up to date.
When a record is located from this search, Orange Tree automatically confirms it at the applicable jurisdiction before reporting it to our client. We do so in order to keep our clients compliant with the FCRA. The vast majority of our clients prefer that we conduct this additional step on their behalf. It not only helps maintain compliance with the “accurate and up to date” language of the FCRA, it enhances the candidate experience and greatly reduces the turnaround time of the background check.
Cases in the U.S. are tried in two different court systems: county/state and federal. Different types of cases are tried in these two separate jurisdictions.
Most felony and misdemeanor cases are filed in county courts. Because of this, county criminal record searches are one of the most complete sources for criminal records.
Not all counties report records to state databases or do so infrequently. Performing a statewide search alone could lead to missed records that may have been found at the county level.
County criminal records are located in 3,242 court jurisdictions across the U.S. and its territories. These records would not be found in a federal check.
County searches are conducted on-site at the county courthouse or electronically by the same databases utilized by the court clerks.
Background providers access county searches in a variety of different ways. These include directly at the courthouse through public terminals, integrations with jurisdictions’ online repositories, and through coordination with the court clerk.
Depending on the state, statewide checks may be a better alternative to a county check. Some states allow the county and the state repositories to share a unified database. In those states, the statewide criminal record repository will provide information that is the same or more inclusive than a county search. Therefore, a statewide search would be most likely be more beneficial in terms of information and price.
Some background screen providers charge the same fee for a “per county” and statewide search. You’ll want to ask your provider for their billing policy.
State record repositories vary by state and may include statewide repositories, state agencies, state highway patrol departments, state department of corrections, and state county databases.
Statewide searches are done on an “as available” basis. Not all states have a publicly accessible repository, provide timely access, or have full and accurate records.
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Information source |
| A statewide criminal record search obtains criminal records from various sources, depending on each state system (i.e. state repositories, state agencies, and unified all-county database). |
| State record repositories vary by state and may include statewide repositories, state agencies, state highway patrol departments, state department of corrections, and state county databases. |
| Statewide searches are done on an “as available” basis. Not all states have a publicly accessible repository, provide timely access, or have full and accurate records. |
Not all counties report into the same database, and each state database functions differently.
For example, Colorado’s database includes reports from all 64 counties. Therefore, performing a statewide check would lead to a complete search.
On the other hand, Texas’s statewide search does not cover all 254 counties. It contains only 65-70% of the actual records found at the county level. Performing a statewide check alone could lead to missing records.
There are different approaches taken by background screen providers to how criminal records are delivered. Some bill by county irrespective of the availability of a statewide search and vice versa. Additionally, many counties and states assess court fees for obtaining court records.
Therefore, it is important for you to work closely with your provider to understand their policies.
Federal searches provide criminal information into higher-level, white-collar crimes and those occurring across state lines.
This search will find records from court cases brought by the Federal Government. Such cases include, but are not limited to, cybercrime, bank robbery, embezzlement, counterfeiting, terrorism, weapons violations and drug trafficking.
This search is applicable for higher-level positions within organizations, employees with access to secure or financial information or all employees in the financial industry. It could be presented that a federal search that should be run for all IT professionals. While most states now also have corresponding cybercrime offenses, money laundering, larger scale identify theft operations, and hacking aimed at government networks are federal offenses and definitely something to be discovered during the candidate vetting process.
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Information source |
| Search of U.S. district courts for federal crimes using the online, US Federal Government PACER record system which covers the 94 federal jurisdictions. |
| Federal criminal records are stored by district in each state. The U.S. District Court for each state can have one district or may be divided into multiple districts. |
The main difference between a federal crime and other crimes is that a federal crime is prosecuted under federal law in federal courts. Because of this, a county criminal search or a statewide criminal search will not return federal records.
The turnaround time for criminal background checks depends on the type of check (database or court records) and the method used to access the information.
Some checks, such as the national criminal records search and the national sex offender search, can be completed instantly, while others can take anywhere from 1-5 business days.
The industry average turnaround time for most criminal searches is between 1-5 business days. This may seem like a wide range in performance, but there are a number of factors that impact the timeliness. The search scope and depth, geographical location of the courts, and the availability of electronic access impact the final deliverable.
County and statewide criminal records can be accessed in a variety of different ways. Depending on the access method, some searches are returned the same day, while others may take several days or more.
Some courthouses provide public terminals and some background providers have integrations with jurisdictions’ online repository leading to faster results. Other courts require a court assisted search, or an in-person, on-site search which can lead to delays.One of the biggest factors in turnaround time can be the responsiveness of the candidate. The criminal searches can only begin once the candidate provides consent and the necessary personal information.
In order to initiate criminal checks, candidates must:
1. Provide their name (or names), address (or addresses) they’ve lived, date of birth, and social security number.
2. Acknowledge a receipt of compliance forms such as the Summary of Rights Under the FCRA.
3. Sign the background check authorization and disclosure forms.
This process can be facilitated when there is an integration with a company’s applicant tracking system (ATS). Candidate information can flow directly from the ATS to the background screen providers system so the work can begin.
Orange Tree delivers fast, easy, and accurate background checks. Background checks play a key role during the screening process. As an employer, a candidate’s criminal history must be considered.
Orange Tree provides comprehensive background solutions designed specifically in the employer’s best interest. We regularly help our clients create screening packages based on the responsibilities and risk level associated with their open positions. We design compliant, legally defensible solutions that align with our client’s specific business policy.
Want to learn more about how our team can be of service to your organization? Schedule a call today!