One Size Does Not Fit All: What Type of Criminal Background Check Are You Using?
Criminal background checks are a necessity for every nonprofit organization or church serving children, and many others as well. Although this involves extra work and expense, the potential benefits are exponential. For those organizations that work with children, the screening process serves two purposes: it protects children from potential predators and helps insulate the organization from liability for negligent selection or retention in the event that a child is harmed by someone inside the organization. Background checks should be done on any person interacting with the public, including employees, independent contractors, and volunteers.
Organizations that decide to implement a screening policy are faced with the question: What type of background check should we use? Some companies boast a national criminal database of 500 million records. Others offer to search the state or county-specific files for an additional fee. But why would an organization pay extra for a search of county and state records when the national criminal database contains the same information?
You may be surprised to learn that individual states and counties are not required by law to report to the national criminal database. Each county determines whether to report, how often to report, and what to report to the database. Many counties choose not to report at all, while others report so infrequently that the information available for those counties is outdated and inaccurate. Counties that report on a regular basis may report only the names of arrested individuals and not their date of birth. Without the date of birth, it is nearly impossible to verify with any certainty the identity of the applicant with that of the individual who showed up on the search. As a result, a national criminal database search will have varying degrees of effectiveness, depending on the county or counties an organization wishes to search.
As an example, every county in Texas reports to the national database. It would appear that an organization located in Texas could search the national database and avoid paying the extra fees associated with a county-specific search. However, a closer look at Texas shows that several of the counties have not updated the information provided to the national database in four or more years. Other counties provide only the names of arrested individuals and not their date of birth, creating an identity confirmation problem when running a background check on an applicant. Because of these variations, an organization operating in Texas should confirm that the county where it’s located is a regular reporter before limiting itself to a national criminal database search.
Most organizations worry that a background check will reveal too little about job applicants and volunteers. However, a background check using a database that is updated infrequently may disclose too much, namely sealed and expunged records. Sealing and expungement are ways in which persons with a criminal record may petition the court of their sentencing county to erase from public view all or part of their criminal record.
In Illinois, a job applicant whose record has been expunged or sealed may lawfully answer “No” when asked, “Have you ever been convicted of a misdemeanor or felony.” A background check using a database that is updated infrequently may retrieve cases that have been sealed or expunged, causing an applicant to appear untruthful when indicating that he or she has never been convicted of a crime.
Because of the complexities involved in this process, we recommend contacting legal counsel and a professional screening company before implementing a screening program for your church, non-profit, or social enterprise. The screening company will help your organization select the type of criminal background check that is best-suited for your county and state. Experienced legal counsel will ensure that your screening policy and hiring practices comply with the Fair Credit Reporting Act, Illinois’ new “ban the box” legislation, and other applicable state and federal laws.
If you have a question about criminal background checks, screening policies, or a related matter, we invite you to contact our office to discuss your specific legal issue. The attorneys of Bea & VandenBerk are experienced in representing organizations in risk management and other employment matters.
This article is provided for general information and is not intended to be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.
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