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• The Use of Public and Private Records for Pre-Employment Screening

The Use of Public and Private Records for Pre-Employment Screening

written on November 03, 2010 by Ted L Moss

Public Records

From birth to death, a government document is created for almost every major life event; birth certificate, property records, marriage and death certificates.  A public record is any document or information a government agency has collected during the process of conducting local, state, or federal governmental business, and they are the main source of information used in background checks.  Why are records about public dealings with the government made public?  One of the main reasons is to ensure government transparency.  The line between Public and Private Records can be a thin one, and the selling and repackaging of these records has become commonplace.

Although the United States Constitution does not provide for the right of the people to have access to government records, various later enacted sunshine laws (otherwise known as open records laws) provide the public access to these public records.  Before the internet was in use, viewing these records required a trip to the courthouse.  Now they are sometimes just a click of a mouse button away.

Not all information within a public record is available to the public.  Public records can contain private information.  For example, a state may redact or hide a person’s social security number if it appears within a government document or record.  In addition, juvenile records, and expunged or sealed records are not available.  Other information on the public may be stored, collected, and re-sold by data vendors when such information is submitted by a member of the public – i.e.: magazine subscription addresses, etc.  Usually, what is available for public viewing within a public record is regulated by Federal and State Governments. In other words, not all public records are available to the public, some contain confidential information.

A background check for pre-employment purposes usually consists of a combination of public and private records.  Some of the information, such as criminal and civil records are readily available to the public via their local courthouses.  Some jurisdictions require a visit to the court to search the records, and others may make the information available online.  A pre-employment screening provider will make use of both in-person courthouse checks and online resources, and through years of data collection and research, have amassed a huge library of sources and know exactly where to go for each jurisdiction.

Where do criminal records come from?

The United States Constitution provides for each state and local government to maintain their own laws and courts.  As a result, there are over 3500 county courts and 10,000 local courts.  The county courts generally handle all felony cases.  The local courts generally handle all misdemeanor cases.  Felony cases are offenses that are more serious and often include incarceration in state prison.  Misdemeanor offenses are less serious offenses and may include incarceration in local jails or probation.  Not all of these courts, while reporting to their state record repositories, are interconnected.

Private Records

As stated above, a lot of private information can be included in a public record.  Some of it is not allowed to be released without a person’s written authorization.  Some examples of information that requires written authorization before release include:
Medical Records
Motor Vehicle Records
Employment Records
Education Records
Bank, Credit Card and other financial information
Tax records

Data Mining and Collection

Many seemingly innocuous activities can lead to the availability of personal information.  Signing up for a magazine subscription, getting a mortgage, donating to charity, registering to vote; all of these activities provide personal information to companies or organizations that later may sell or provide that information to data brokers.

There are companies that specialize in visiting websites such as court records websites, and gather to information for the purpose of later re-selling it.  These companies sell criminal records database checks.  The problem with these checks is that once a company collects criminal record information, it is practically irretrievable. If the information collected is for an arrest that never resulted in a conviction, or for a case that was later expunged, the record still remains in the database.  This can cause problems for employers who use databases for their criminal record checks because, unless they are experts on all of the fifty state’s specific Fair Credit Reporting Act (FCRA) laws, and the Federal FCRA laws, they will unknowingly use information that is not allowed to be used in the process of a pre-employment background check.

Other Proprietary Databases

Other databases, such as the National Retail Mutual Association’s (NRMA) - Retail Theft Database, and Lexis Nexis’ Retail Theft Databases are run and administered by specialty groups.  They tend to be geared towards specific industries such as retail or mortgage, and/or specific behaviors such as internal theft, shoplifting and internal industry sanctions.  These databases provide information not found in the court system, by listing employees that, for example, were fired for internal theft but never prosecuted.  This by the way is not unusual.  Many companies, especially retail, prefer to handle their theft problems in-house.  They may arrange employee termination and even process a re-payment plan, all outside of the court system.

Suffice it to say that the use of only a criminal records database search for pre-employment screening purposes is risky business – definitely not a safe hiring practice.  These databases have their purpose in the pre-employment screening arsenal, however, data that is retrieved using a database should be carefully screened – by someone who is completely familiar with each state’s employment screening regulations.  A database should not be the only criminal record search.  The industry standard best practice is to search at the county and city court levels based on the applicant’s residential history.  A database check is a good safety net that can be used in addition to the standard check.

Ted L. Moss

Crimcheck