acfe - background checks

8/4/2019 ACFE - Background Checks

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2006

INVESTING BEFORE THE LOSS: PREVENTION & DETERRENCEBACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK

When hiring employees, retaining a client, complying with know your customerprocedures or screening an executive, background checks should be commonplace. Youknow you need to do them. But what are the best and most efficient methods? Consider howoften to perform these checks, whether or not to outsource them, what information youshould review given your risk model and more.

BARRY J. NADELL

President

InfoLink Screening Services

Chatsworth, California

Barry Nadell is President of InfoLink Screening Services, A Kroll Company. InfoLink isthe west coast division of Kroll Screening Services, Nashville, TN a national provider ofemployment background screening, drug testing and physicals. He is a founding member andon the board of directors of the National Association of Professional Background Screeners(NAPBS) and the Association of Consumer Reporting Agencies (ACRA).

As the established industry expert on the legal issues of employment background

screening, he speaks nationally on the subject and has been a featured speaker at severalnational conventions to educate professionals in human resources, security and otherindustries.

Mr. Nadell has written many articles, has been quoted, has been featured on televisionprograms including The Bloomberg Report and ABC News with Peter Jennings, and hasbeen interviewed on more than 150 live talk radio programs.

A licensed private investigator in California, he is an associate member of the American,California State and Los Angeles Bar Associations specializing in labor and employmentissues and a member of many organizations.

In 2004, Barry Nadell was honored with the Excellence in Human Resources award fromthe SHRM affiliate PIHRA for his valuable contributions to the field of Human Resources. Inaddition, he has been an industry advocate in his state, California, and in DC on legislationrelating to background screening. Finally, he is the author of a new book: Sleuthing 101,Background Checks and The Law.


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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK

17th

Annual ACFE Fraud Conference2006 1

NOTESIntroduction

State Department of Justice statistics for 2002 reveal that

6.7 million peoplewhich translates to one in every 32

adults-are either jailed or in prison, or released on probation

or parole. At least 95% of all state prison inmates will be

released from prison at some point. About 80% are released

under supervised parole. Recidivism is high; presently,

67.5% of all prisoners released are subsequently rearrested

for a serious misdemeanor or felony within three years.

At the end of 2002, State and Federal prison authorities had

under their jurisdiction 1,440.655 inmates; 1,277,127 of

these were under State jurisdiction and 163,528 underFederal jurisdiction. Midyear 2002, local jails held or

supervised 737,912 persons awaiting trial or serving a

sentence. About 72,000 of these were persons serving their

sentence in the community.

Unless you are diligent in performing background checks,

some of these convicted criminals could wind up working

for you, thus increasing the likelihood of violence in your

workplace, theft of property, and legal action taken against

you for negligent hiring liability.

Virtually every employer today is either considering doing

background checks on potential employees or already

performing them. Given the statistics on workplace

violence, that is hardly surprising.

Workplace violence currently claims two million victimsannually. Homicide is one of the largest causes of

workplace deaths for all employees and until 2002 was the

single largest cause of workplace deaths for women

employees today, not accidents, not medical conditions, but

homicide. Almost a dozen people are murdered in the

course of doing their jobs every week!


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NOTESHomicide is obviously the most extreme form of workplace

violence. However, we need to recognize that hostile

behaviors such as yelling or screaming, threatening

violence and fighting in the parking lot constitute

workplace violence as well.

More than just recognizing this, we need to do everything

in our power to prevent such behaviors from occurring.

It is important to note that a percentage of those who have

been convicted of a crime do get rehabilitated and deserve a

second chance working in society. Background screening is

not simply to weed out anyone and everyone with aprevious conviction from the workplace. Its purpose is to

provide critical information to review to make an intelligent

hiring decision. If you decide to do a background check,

stick to information that is relevant to the job for which you

are considering the applicant and verify all the information

provided by that applicant.

Background Checks Can Prevent Violence and Protect

Your Company As Well

The best way to prevent workplace violence is to perform

careful, legally correct and extremely thorough background

checks on all applicants for employment and eliminate any

applicant who is not a good potential candidate for the

particular position for which they are applying.

Background screening is a strategic step many

organizations are taking to hire the right person, ensure asecure workplace, reduce turnover, and minimize liability

for negligent hiring and retention. However, many

companies are unaware of current regulations and focused

business practices that can help them more expeditiously

meet their overall background screening needs.


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NOTESIn Background Checks and The Law, you will learn best

practices of employment screening for risk management

and better hiring decisions. You will have a complete

knowledge of the Fair credit Reporting Act, Federal

Updates to the FCRA, State Laws, and the FTC Staff

Opinion Letters giving you peace of mind that your

organization is fully compliant legally. You will learn what

products are available so that you can be sure that your

organization is accessing all the information that is

pertinent to making an informed hiring decision. You will

learn the pros and cons of new products to hit the market

and how to use the information obtained in your hiring

process. You will also learn how your employmentapplication can be your best and first defense against a bad

hire.

Simply put, you will understand the law, legal theory, and

more importantly, its practical application in your

workplace.

Negligent Hiring Liability

Employers can face liability for negligent hiring practiceswhen workers commit acts of violence

Source: Victims of Omission ABA Journal, March 1999

Background Screening: Return on Investment

Cost of Hiring

Lost Productivity when a Position is Vacant Cost of Recruitment Cost of Training Temporary Loss of Productivity of Co-WorkersCost of Termination

Cost of Theft/Shrinkage Cost of an Unproductive Employee until

Terminated


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NOTES Cost of Absenteeism Cost of Investigations Cost of Severance, Claims or Lawsuits

Federal Laws & Guidelines

The following laws and guidelines affect background

screening. All of these laws can be found in their entirety

at:

http://www.infolinkscreening.com/InfoLink/Resources/Leg

alIssues.aspx.

The Fair Credit Reporting Act Found at 15 UnitedStates Code Section 1681

Americans with Disabilities Act Equal Employment Opportunities Commission

Guidelines

Consumer Credit Reporting Reform Act of 1996 Consumer Reporting Employment Clarification Act of

1998

The Fair and Accurate Credit Transactions Act of 2003

Laws with Teeth

Consumer Credit Reporting Reform Act of 1996

604. [15 U.S.C. 1681b]

Certification from user: The person who obtains such

report certifies to the background screening agency

that:

It understands the laws and will comply with them Information will not be used to violate any Federal

or State laws

It has a permissible purpose for the report asrequired

Consumer Credit Reporting Reform Act of 1996

(15 U.S.C. 1681n, 1681o, 1681s):


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NOTES Penalties on those who do not comply include

actual damages, punitive damages, costs, and

attorneys fees.

In addition, civil and criminal penalties may apply.Permissible Purpose

Section 604 of The Fair Credit Reporting Act:

1. In response to the order of a court havingjurisdiction to issue such an order, or a subpoena

issued in connection with proceedings before a

Federal grand jury.

2. In accordance with the written instructions of theconsumer to whom it relates.

3. To a person which it has reason to believe:a. intends to use the information in connection

with a credit transaction involving the

consumer on whom the information is to be

furnished and involving the extension of

credit to, or review or collection of an

account of, the consumer; or

b. intends to use the information foremployment purposes; or

c. intends to use the information in connectionwith the underwriting of insurance involving

the consumer; or

d. intends to use the information in connectionwith a determination of the consumer's

eligibility for a license or other benefit

granted by a governmental instrumentality

required by law to consider an applicant'sfinancial responsibility or status; or

e. intends to use the information, as a potentialinvestor or servicer, or current insurer, in

connection with a valuation of, or an

assessment of the credit or prepayment risks


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NOTESassociated with, an existing credit

obligation; or

f. otherwise has a legitimate business need forthe information

i. in connection with a business transactionthat is initiated by the consumer; or

ii. to review an account to determinewhether the consumer continues to meet

the terms of the account.

g. Section 604(a)(3)(F) would provide apermissible purpose for a landlord

considering an application for a rental

apartment, or a merchant consideringwhether to accept a personal check as

payment for consumer goods or services. It

would not provide a permissible purpose for

an attorney in most litigation contexts. See

Comments 604(3)-4/5/6 in the 1990 FCRA

Commentary (55 FR 18816; 5/4/90).

h. In response to a request by the head of aState or local child support enforcement

agency (or a State or local government

official authorized by the head of such an

agency)

Definition of Terms

Consumer Credit Reporting Reform Act of 1996:

In general. The term consumer report means anywritten, oral, or other communication of any

information by a consumer reporting agencybearing on a consumers credit worthiness, credit

standing, credit capacity, character, general

reputation, personal characteristics, or mode of

living which is used or expected to be used or

collected in whole or in part for the purpose of


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NOTESserving as a factor in establishing the consumers

eligibility for Employment Purposes.

The term investigative consumer report means aconsumer report or portion thereof in which

information on a consumers character, general

reputation, personal characteristics, or mode of

living is obtained through personal interviews with

neighbors, friends or associates.

The term employment purposes when used inconnection with a consumer report means a report

used for the purpose of evaluating a consumer for

employment, promotion, reassignment or retention

as an employee. A consumer reporting agency is an organization

which, for monetary fees, engages in whole or in

part in providing information on consumers for the

purpose of furnishing consumer reports to third

parties.

FTC Staff Opinion Letter

United States of America

Federal Trade Commission

Washington D.C. 20580

6/9/98: LeBlanc

6/12/98: Slyter

Confirming: Private investigators and record search

firms are CRAs under the definition set forth in

Section 603(f); however individual researchers hired by

such firms are not CRAs Adverse action is a denial of employment or any

other decision for employment purposes that

adversely affects any current or prospective

employee.


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NOTESRules to Follow

Disclosure To Consumers For Consumer Reports

604(b)(2)

A. A clear and conspicuous disclosure has been madein writing solely of the disclosure, that a consumer

report may be obtained

B. The consumer has authorized in writingFTC Staff Opinion Letter

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580Bureau of Consumer Protection

June 12, 1998

Re: Sections 604 and 606 of the Fair Credit Reporting

Act

While we believe that you may combine the disclosure

and authorization (and include identifying information)

as you have in the draft form that you included with

your letter, we note that your draft disclosure includes a

waiver by the consumer of his or her rights under the

FCRA. The inclusion of such a waiver in a disclosure

form will violate Section 604(b)(2)(A) of the FCRA,

which requires that a disclosure consist solely of the

disclosure that a consumer report may be obtained for

employment purposes. Moreover, it is a generalprinciple of law that benefits provided to citizens by

federal statute generally may not be waived by private

agreement unless Congress intended such a result.

Brooklyn Savings Bank v. ONeill, 324 U.S. 697

(1945). We note that no authorization for a waiver is

contained in the FCRA; nor does the legislative history


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NOTESshow that Congress intended that consumers should be

able to sign away their legal rights under the Act.(1)

Accordingly, employers and other users of information

covered by the FCRA may not require consumers to

waive their rights under the law.

Disclosure To Consumers For Investigative Consumer

Reports 606

(a)(1) it is clearly and accurately disclosed to the

applicant that an investigative consumer report

including information as to his character, general

reputation, personal characteristics and mode of living,

whichever are applicable, may be made,

A. is made in a writing delivered, not later than threedays after the date on which the report was first

requested, and

B. includes a statement informing the consumer of hisright to request the additional disclosures and the

written summary of the rights of the consumer

prepared pursuant to section 609(c) [ 1681g];




WASHINGTON, D.C. 20580

Bureau of Consumer Protection

H. Rowan Leathers, III, Esq.

2. Section 604(b)(2)(A) of the FCRA seems to require

that the consumer disclosure be in a document that

consists solely of the disclosure. With regard to this

requirement, is it sufficient that the disclosure be


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NOTESprominently set forth within an application for

employment, or must it truly be included on a separate

document?

The disclosure may not be part of an employment

application, because the language you quote is intended

to ensure that it appears conspicuously in a document

not encumbered by any other information. The reason

for requiring that the disclosure be in a stand-alone

document is to prevent consumers from being distracted

by other information side-by-side with the disclosure. A

disclosure that is combined with many items in an

employment applicationno matter how prominentlyit appearsis not in a document that consists solely of

the disclosure as required by Section 604(b)(2)(A).




WASHINGTON, D.C. 20580

Bureau of Consumer Protection

Frank James

August 5, 1998

Re: Sections 604(b)(2) of the Fair Credit Reporting Act

Is it permissible for an employer to make a one-time

disclosure to applicants and current employees?

We believe, therefore, that a one-time disclosure may

be made and permission obtained from applicants and

current employees for the employer to obtain a

consumer report at any time during the application

process or during an employees tenure.


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NOTESAdverse Action

Step #1

Before taking any adverse action based in whole or in

part on the report, the person intending to take such

adverse action shall provide to the consumer to whom

the report relates a copy of the report; and a description

in writing of the rights of the consumer under this title,

as prescribed by the Federal Trade Commission under

section 609(c)(3) [ 1681g]

STEP #2 and #3

Wait a reasonable period of time and take adverse

action in writing.

2004 Federal Legislation

THE FAIR AND ACCURATE CREDIT TRANSACTION

ACT

1. Waives requirement for disclosure in connection

with an investigation

(i) of misconduct relating to employment

(ii) of compliance with Federal, State, or local

laws and regulations, the rules of a self-

regulatory organization, or any pre-existing

written policies of the employer

2. Credit investigation is excludeddisclosure still

required

3. Adverse Actionemployer shall disclose nature

and substance of communication upon which the

adverse action is based (excluding sources).

ACCURACY INFORMATION WITHIN REPORT

606 (d)(3) [15 U.S.C. 1681d]

Except for 613, A CRA may not disclose:


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NOTES Public record and that relates to an arrest,

indictment, conviction, civil judicial action, tax

lien, or outstanding judgment, unless

The agency has verified the accuracy of theinformation during the 30-day period ending on

the date on which the report is furnished.

INFORMATION WITHIN REPORT

606 (d)(3) [15 U.S.C. 1681k]

A consumer reporting agency which furnishes a

consumer report for employment purposes and

which for that purpose compiles and reports items

of information on consumers which are matters of

public record and are likely to have an adverse

effect upon a consumers ability to obtain

employment shall:

Maintain strict procedures designed to insure

that whenever public record information which

is likely to have an adverse effect on a

consumer's ability to obtain employment is

reported it is complete and up to date. For

purposes of this paragraph, items of public

record relating to arrests, indictments,

convictions, suits, tax liens, and outstanding

judgments shall be considered up to date if the

current public record status of the item at the

time of the report is reported

or

At the time such public record information is

reported to the user of such consumer report,

notify the consumer of the fact that public

record information is being reported by the


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NOTESconsumer reporting agency, together with the

name and address of the person to whom such

information is being reported.

State Laws

California

California has more comprehensive requirements when

background screening than any other state:

Disclosure must include:

Name of the Consumer Reporting Agency The fact that the information may bear on the

persons character, general reputation, personalcharacteristics, and mode of living

A summary of Section 1786.22 of the CaliforniaCivil Code (consumers rights)

A box the consumer may check to receive a copy ofthe background report*

* Also required in Minnesota and Oklahoma

Accuracy

Whenever a consumer reporting agency prepares a

consumer report, the agency shall follow reasonable

procedures to assure maximum possible accuracy of the

information concerning the consumer about whom the

report relates

What Information is Available

Criminal History County Court Search

3144 Counties, Over 15,000 Courts, Multiplestorage formats, docket books, computer

terminals, microfilm, remote dial access

State Repository National Criminal Database Search


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NOTES Most Databases only provide felony convictions Felonies represent about 27% of criminal filings Approximately 2.5% of searches have a felony

Source: GAP Inc. Fingerprinting

Felony Vs. MisdemeanorFelony Only States: Massachusetts*, SouthDakota

*Misdemeanors 5 Yrs 2nd+ offense

Arrest Records

GENERAL INFORMATION FROM BNA

Because members of some minority groups arearrested substantially more often than whites in

proportion to their numbers in the population,

making personnel decisions on the basis of

arrest records involving no subsequent

convictions has a disproportionate effect on the

employment opportunities of members of these

groups.

The courts and the commission accordinglyhave held that without proof of business

necessity an employers use of arrest records to

disqualify job applicants is unlawful

discrimination. Carter v. Gallagher, 452 F. 2d.

315 [3 FEP Cases 900] (C.A. 8, 1971); Gregory

v. Litton, 472 F. 2d. 631 [5 FEP Cases 267]

(C.A. 9, 1972).

Example: An employers policy of not hiringapplicants with arrest records had the

foreseeable effect of disparate impact and thus

violated Title VII because the employer could

show no business necessity for the particular

jobs at issue. (Gregory v. Litton Systems, CA 9,

1972, 5 FEP Cases 267).


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NOTES The EEOC has ruled that even if an employer

does not consider arrest information, the mere

request for such information tends to discourage

minority applicants and is therefore illegal.

WHAT MAY BE REPORTED?

California Labor Code 432.7

No employer, whether a public agency or private

individual or corporation, shall ask an applicant for

employment to disclose, through any written form

or verbally, information concerning an arrest or

detention that did not result in conviction, orinformation concerning a referral to, and

participation in, any pretrial or post-trial diversion

program, nor shall any employer seek from any

source whatsoever, or utilize, as a factor in

determining any condition of employment including

hiring, promotion, termination, or any

apprenticeship training program or any other

training program leading to employment, any

record of arrest or detention that did not result in

conviction, or any record regarding a referral to, and

participation in, any pretrial or post-trial diversion

program. As used in this section, a conviction shall

include a plea, verdict, or finding of guilt regardless

of whether sentence is imposed by the court.

Nothing in this section shall prevent an employer

from asking an employee or applicant for

employment about an arrest for which the employeeor applicant is out on bail or on his or her own

recognizance pending trial.


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NOTESCalifornia Fair Employment and Housing

Commission

Rules and regulations indicate that, it is unlawful for

an employer or other covered entity to inquire or seek

information about an applicant that concerns any arrest

or detention not resulting in conviction; any conviction

for which the record has been sealed or expunged by

court order or statutorily eradicated (e.g., sealed

juvenile offense records); any misdemeanor conviction

for which probation has been successfully completed or

otherwise discharged, and the case has been dismissed

judicially; and any arrest for which a pretrial diversion

program has been successfully completed.

Reference Cite/Code: Fair Employment and Housing

Act: Pre-Employment Inquiry Guidelines. FAIR

EMPLOYMENT PRACTICES 453:3561 (BNA).

Arrest RecordsState

Colorado: Employees may answer questions aboutarrests or convictions as though they had not

occurred.

Connecticut: The applicant is not required todisclose the existence of any arrest.

D.C. Arrest records. May not obtain or inquire intoarrest record.

Hawaii: It is a violation of law for any employer torefuse to hire, to discharge or to discriminate in

terms of compensation, conditions or privileges of

employment because of a persons arrest or courtrecord.

Illinois: employees may answer questions aboutarrests or convictions as though they had not

occurred.

Massachusetts: May not ask about arrests that didnot result in conviction.


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NOTES Michigan: Employers: May not request information

on any arrests or misdemeanor charges that did not

result in conviction.

Nebraska: employers: May not obtain access toinformation regarding arrests that do not lead to

conviction

New Hampshire: It is unlawful discrimination foran employer to ask about an arrest record, to have a

job requirement that applicant have no arrest record

or to use information about arrest record to make a

hiring decision, unless it is a business necessity.

New York: It is unlawful discrimination to askabout any arrests or charges that did not result inconviction, unless they are currently pending.

Rhode Island: It is unlawful to include on anapplication form or to ask as part of an interview if

the applicant has ever been arrested.

Utah: It is not permissible to ask about arrests. Wisconsin: It is a violation of state civil rights law

to discriminate against an employee on the basis of

a prior arrest

Information Available

Convictions: How Far Back Can We Report

FCRA CLARIFICATION ACT STATE LAW

CA 1785.13.6 & 1786.18.7 7 yearsCO CRS 12-14.3-105.3 7 years $75KKS 50-704 7 years

MD 14-1203 7 yearsMA MGL 93-52 7 yearsMT MCA 31-3-112 7 yearsNV NRS 598C.150 7 yearsNH HRS 359-B:5 7 yearsNM 56-3-6 7 yearsNY ART 25- 380-j 7 years $25KTX CH 20 20.05 7 years $75K


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NOTESWA RWC 19.182.040 7 years $20K

Databases

NATIONAL CRIMINAL FILES

Database search. Records generally felony only! Same day/next day access. Millions offense records. Covers some records in 47/50 states. Includes some correctional data lists, some sex

offenders, some state repositories, some court

records.

Does not include county court records frommost jurisdictions.

TEST CONVICTIONS

Child Abuse Carry Firearm during drug trafficking First degree burglary Sexual penetration with foreign object Forgery

Attempted invasion of home Resist law enforcement Unlawful taking of police weapon Embezzlement Vehicle theft Statutory sexual seduction Possession of deadly weapon by prohibited

possessor

Deliver control substance Battery Manufacture control substance Aggravated burglary Sell/transport control substance False report of a crime


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Criminal Search National Criminal Search

However, The National Criminal Database may find cases

where the subject stated he/she never lived!

NATIONAL CRIMINAL DATABASE TEST:25 Known Convicted Felons

UNIQUE JURISDICTIONS: 21Letters A-I indicate 9 different database companies tested

NAME MATCHES:

A B C D E F G H I

12 19 14 16 14 13 14 13 15

NO MATCHING RESULTS:

A B C D E F G H I

7 5 10 5 10 8 9 10 8

NO MATCHING CONVICTION INFO BUT OTHER HITS:

A B C D E F G H I

6 1 1 2 1 4 2 0 2

ERROR RATE:

A B C D E F G H I 52% 24% 44% 28% 44% 48% 44% 40% 32%


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NOTESNational Criminal Database

BEST PRACTICE

JURISDICTIONS: Use a CRA that analyzeseach jurisdiction covered by every vendor

ERROR RATE: To reduce error rate, use theCRA that researches with the vendor who

purportedly has data within the jurisdiction the

person lived or had lived

RESULT: More likelihood to reduce error ratewhile still locating other potential jurisdictions

containing convictions

Other DatabasesTEXAS CRIMINAL CRS DATABASE: KNOWN

CONVICTED FELONS: NO RECORDS FOUND

Charge: Murder of a childJurisdiction: Rowlett, TX

Sentenced on: 2/4/1997

Currently on Death Row

Charge: Murder of husband, son, daughterJurisdiction: Harris Cty, TX Sentenced on:

11/17/1988


Charge: Murder & KidnappingJurisdiction: Austin, TX



Charge: MurderJurisdiction: Houston, TX

Sentenced on: 3/2/1995Currently on Death Row

Charge: Robbery & MurderJurisdiction: Harris Cty, TX




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NOTES Charge: Possession of Cocaine

Jurisdiction: Denton, TX


SEX OFFENDER DATABASE TEST: 49 Known Registered Sex Offenders JURISDICTIONS: 45 NAME MATCHES: 39 NO MATCHING RESULTS: 8 ERROR RATE: 16.33% STATES THAT FAILED TO RETURN

RESULTS ON KNOWN SEX OFFENDERS:

Iowa, Louisiana, Minnesota, Nevada, NorthCarolina, South Dakota, Wisconsin

EYE-CATCHING FACTS ABOUT: STATE CRIMINAL

RECORD REPOSITORIES

Why state criminal record repositories are not

created equal:

Information collected Access Automation and control Receiving and reporting of dispositions Use of fingerprintsState repositoriesdata collected:

The Sources of the majority of states recordsare from state (county) courts and law

enforcement.

What information is reported, when it isreported, and how it is reported will all affect

the quality and completeness of state data.


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NOTESFor Example:

32 states require prosecutors to report to staterepositories of a decision to decline prosecution

of a case.

35 states and DC require law enforcementofficials to notify the state repository when an

arrested person is released without formal

charging, but after fingerprints were submitted.

Federal Criminal Record Indices andRepositories

Reciprocity and Reporting As of 12/31/02, there are 64, 282,700 subjects in

state Criminal history files In 2002 over 1,100,000 adults were convicted of

a felony. Over 94% of the total were convicted

in state courts.

Statistical Resources: The statistics shown on the

following are taken from the U.S. Department of

Justice, Bureau of Justice Statistics and from BRB

Publications Public Record Research System. Also

used is an August 2003 release of DOJs Survey of

State Criminal History Information Systems, 2001

(www.ojp.usdoj.gov/bjs/abstract/sschis01.htm)

State Repositories: 38 states availableAdditional

Fees: From $5-$25

AL, AR, CO, CT, DE, IL, Dist. Of Columbia, FL,

GA, HI, ID, IN, IA, KS, KY, MD, MI, MN, MO,

MT, NV, NH, NJ, NM, NC, ND, OK, OR, PA, RI,SC, SD, TN, TX, VA, WA, WV, WI

Turnaround from: Same Day to 30 days

State Repositories: Limited/No Availability


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NOTESAlaskaCriminal Justice Agencies Only

ArizonaFingerprints

CaliforniaNot Available

LouisianaNot Available

MassachusettsLimited

MaineLimited

MississippiNot Available

NebraskaLimited

New YorkCourt Order/Subpoena

OhioFingerprints & Release

UtahSubpoena or Authorization by Law

VermontNot Available

WyomingFinger prints & Notarized Release

STATE REPOSITORIESACCESS PROVISIONS

The Need-to-Know Standards Vary

21 states release records to the general public 19 states plus D.C. release records to the public

with a release from the subject

16 states require statutory authority to accesstheir records

(AK, KS, MN, NY, RI, TX appear on 2 lists,

depending on type of record accessed)

STATE REPOSITORIESAUTOMATION AND

CONTROL

Overall, 89% of records are automated. 6.8million (Approx 11%) records are not.

27 states have fully automated criminal recordfiles

All states have a fully automated name index 49 states maintain transaction logs to provide an

audit trail of all inquires, responses, and record

updates or modifications


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NOTES 42 states use computer edit and verification

programs as part of data quality procedures

STATE REPOSITORIESRECEIVING DISPOSITIONS

OF RECORDS

21 states report they receive final felony trialcourt dispositions for 70% or more arrests

within last 5 years.

Only 10 states report they receive 100% of finaltrial court dispositions.

6 states do not require felony trial courts toreport dispositions to the state repositories.

47 jurisdictions report they receive final courtdispositions that cannot be linked to arrest

records in the database.

The overall average is 18 days between the dateof the final court disposition and the receipt of

the data by the state criminal record agency.

Range is 1 to 80 days (ND).

The overall average is 29 days between thereceipt of the final disposition and entry into the

state database. Range is 1 day to 330 days

(WA).

23 states report all records, with or withoutdispositions.

22 states report only records with dispositions. 12 states report time sensitive records without

dispositions (9 states use 1 year as their rule).

(Some states appear on two lists, depending onsubjects consent and access methods.)


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NOTESSTATE REPOSITORIESFINGERPRINT-

SUPPORTED RECORDS

42 states, representing 94% of the USpopulation, have records that are 99-100%

fingerprint supported

In 4 states and DC, only 30% to 85% of arrestsare fingerprint supported

In Massachusetts there are no fingerprint-supported criminal records

The overall average is 13.7 days between thedate of the final court disposition and the receipt

of fingerprints by the state criminal record

agency. Range is 1 to 169 days (MS). The overall average is 14.4 days between the

receipt of fingerprints and entry into the state

database. Range is 1 day to 180 days (OK).

Understanding the Federal Criminal Record

Databases

THE SOURCES

Federal Courts National Crime Information Center (NCIC) Interstate Identification Index System (III) National Crime Prevention and Privacy

Compact

National Instant Criminal Background CheckSystem (NICS)

TWO DISTINCTIONS

Is the information available to the public? Does the information just consist of federal law

violations?

FEDERAL CRIMINAL COURT RECORDS

94 Judicial Districts exist with 296 DivisionalCourts


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NOTESTAKE CAUTION WHEN USING FEDERAL CRIMINAL

COURT RECORDS

Lack of good identifiers Limited number of records Greater chance of false positivesTHE NATIONAL CRIME INFORMATION CENTER

(NCIC)

An automated database of criminal justice andjustice-related records maintained by the FBI.

Includes wanted and missing persons, stolenvehicles, and identifiable stolen property

including firearms, subjects of protection and

restraining orders.

Sources of information include counties, states,and federal agencies.

Not open to non-criminal justice agencies,unless by statutory provisions (licensing

agencies, such as healthcare, police, etc.)

INTERSTATE IDENTIFICATION INDEX (III) SYSTEM

Not a database, but an index with a pointersystem of persons arrested for felonies or

serious misdemeanors under state or federal

law.

As of 11/2004, III has 47,832,397 criminalrecords, of which 33,370,410 are state-

supported and 14,461,987 FBI supported.

Meant for the interstate exchange of criminalhistory records.

Includes identification information such asname, date of birth, race, and sex, FBI Numbers

and State Identification Numbers (SID).

42 States are participating members (LA, ME,VT, DC, HI, KY, LA, MA, ME, and U.S.

Territories are not).


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NOTESNATIONAL CRIME PREVENTION AND PRIVACY

COMPACT

Effective April 1999, establishes formalprocedures and governance structures for use of

the III.

Designed to facilitate use by states andeliminate need for FBI to maintain duplicate

data about state offenders.

Key Conceptall participating states willprovide all criminal history information (except

sealed cases) in response to non-criminal justice

requests from another state.

The law of the state that is inquiring about thedata, rather than the law of the state holding the

record, governs the use.

As of March 2003, 20 states have joined theCompact (AK, AZ, AR, CO, CT, FL, GA, IA,

KS, ME, MN, MT, NC, NH, NJ, NV, OH, OK,

SC)

NATIONAL INSTANT CRIMINAL BACKGROUND

CHECK SYSTEM (NICS)

NICS is system used by gun dealers to screenpersons applying for a firearm

Personal identifiers used to match NCIC, III,and the NICS index

NICS Index contains records of over 1 millionpeople prohibited from possessing a firearm

NICS shares disposition information receivedduring process, when the NICS findsinformation not reflected at the state level. Over

90% of the states use the NICS data to update

their records (although 1/3 of the states indicate

there is a backlog averaging 62 days.)


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NOTESBe careful! Headline reads: Police Urge Sex

Charges be Filed against Ex-Coach

Source: The Arizona Republic

Other DatabasesWhat Does it All Mean?

Know the strengths and weaknesses of the staterepositories

Importance of the county search Importance of supplemental database search Importance of dispositions

Other Searches: Elements of a Complete Search

Social Security Trace Motor Vehicle Reports

We recommend an MVR in every search because it tells

you things that you may not find in a criminal search

including DUIs, Possession of Drugs, Warrants, Failure to

Appear, Etc. Also, it is the only search that helps identify

the correct date of birth of the applicant.

Employment Credit Reports References (Investigative Consumer Report)

When Outsourcing References

Section 609(c)(3) [ 1681g] of the FCRA requires that

within 3 days of requesting an Investigative Consumer

Report, the requestor provide a description in writing of

the rights of the consumer, as prescribed by the Federal

Trade Commission.

Education Beware of Falsified Educations Available on the

Internet.

Office of Inspector GeneralMedicare FraudReport

Terrorist Search (OFAC & Prohibited Parties)


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NOTES Military Service Civil Records Workers Compensation (AK, AZ, AR, CA, CN,

FL, HI, ID, IL, IA, KN, KY, LA, MA, MS, MI,

MN, MT, NB, ND, OH, OK, OR, PA, SC, SD, TN,

VT, WV, WY)

Drug Testing Employment Physicals Right to Work Verification within 3 days of hire Sex OffenderChild Molester I.D. About 386,000 convicted sex offenders were

registered in 49 states and D.C. as of February

2001, compared to 277,000 registered in April1998. California had the largest number of

offenders in its registry with over 88,800 registrants

(23%).

Texas had the second largest registry with almost30,000 registrants.

Source: U.S. Department of Justice, Bureau of Justice Statistics,March 2002, NCJ 192265

How do You Use the Information?

EEOC Guidelines The nature and gravity of the offense Time lapse since the offense occurred Job applied for

Dont Get Hung Out to Dry: A Database Search is not

enough!

Bibliography

BRB Publications Public Record Research System. Department of Justices Survey of State Criminal History

Information Systems, August 2003

GAP Inc.


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NOTES Reference Cite/Code: Fair Employment and Housing Act: Pre-

Employment Inquiry Guidelines. FAIR EMPLOYMENT

PRACTICES 453:3561 (BNA).

Smith, William C., Victims of Omission: ABA Journal, March1999

United States Department of Justice, Bureau of Justice Statistics,March 2002, NCJ 192265


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NOTES


acfe - background checks

Documents