Best Practices For Criminal Records Screening
Introduction – Navicus is a trusted and leading, pre-employment background screening and drug testing firm. At the core of Navicus is its’ employees. Navicus employees have decades of experience in Human Capital, Legal Compliance, and Technology. Thousands of companies leverage Navicus core capabilities on a daily basis to assist in developing best-hiring practices. Navicus conducts an extensive audit of each client’s hiring practices at the outset of each relationship. The review often uncovers areas that need improvement to limit catastrophic hiring mistakes. Exposures to catastrophic hiring are rarely deliberate or done with scienter. These hazards exist because there is no universal best-practice screening explanation that can be applied to an entity that is dynamic, fluid, and ever-changing. One of the most dynamic aspects of a hiring process is the applicant. The applicant has a life history that you, the hiring manager, must authenticate. In particular, the applicant’s criminal history must be verified. Another dynamic aspect of a hiring process is the job position. Different job responsibilities require different skill sets. In turn, these skill sets can be screened with various types of background checks. Thus, the problem begins. The following document breaks down the who, what, where, when, and hows of criminal records.
Problem Statement – Several issues are presented when determining which criminal record search is the best for you to apply as a hiring manager. The first issue centers on the time to hire. This requires asking yourself whether the types of criminal searches requested are enabling you to receive information back in a time frame that affords the opportunity to hire an applicant before he or she goes to another employer. The second issue centers on the amount allocated to spend per applicant. We have yet to come across an HR department that was given unlimited access to funds. Even if an HR department is given carte blanche, spending more does not necessarily mean you are conducting the right type of search. The third issue centers on compliance. We frequently see hiring managers accessing criminal records that are ineligible for use with hiring decisions. For example, using arrest records, outdated, or simply discriminatory information, all present significant legal liability exposures. So how do you determine what is the best practice for your personnel? Before jumping into that question, you must have a general understanding of where criminal records come from. Yes, they come from people doing bad things in the eyes of the law.
Criminal Records Overview – When determining the best criminal search to screen applicants for hire, one must first have a general understanding of how the legal system works. Armed with that knowledge, one or many types of criminal searches should become evident to meet a best-practices criminal screening process. The following is the overview. Law enforcement is a function of the state, local officers and agencies. General police powers are reserved to the states. Federal offenses are crimes against the government and its employees, or that involve intrastate activities. Thus, there are 52 separate criminal jurisdictions in the United States: 1 for each state, 1 for the District of Columbia, and one for federal jurisdiction. While most are similar among the states, there are substantial differences in the penalties for like offenses. The easiest way to understand the criminal legal system is to walk through a crime scenario. The first step is the investigation of crimes and the arrest of persons suspected of a crime. The second step is the prosecution of those charged with a crime. The last step is the punishment or treatment of persons convicted of a crime.
State Department of Law Enforcement Records – The first step that we, as hiring managers, may be concerned with is the arrest. The arrest is the first step through the criminal legal system. The arrest is typically made by a sheriff’s office. After a person is arrested and charged with a crime they will be booked. The person will be finger printed. The name and the crime that the person is charged with will be entered into the official police record. Depending on the charge and the circumstances of the case, the person may be released and ordered to appear for a hearing in court. The person may be released on their own recognizance or may have to put up a certain amount of bail to secure release. In other instances, the person may remain in police custody until there is a court hearing on their release. The sheriff’s office maintains the arrest records in their local repositories. All the sheriff’s offices in the state are linked to a central State repository. The central repository is referred to as a State Department of Law Enforcement or “SDLE” search. Also, it may be called a Statewide Criminal search in the background screening industry. Each State’s SDLE is different and there are limitations and advantages to the search. The SDLE limitations are the quality of the records that are housed in the repository. The records in the SDLE are not wrong, however, they are not necessarily complete for the purposes a hiring manager needs to conduct a best-practice screening process. SDLE criminal records are coming from the arresting State agency. The SDLE records are primarily going to contain arrest records. Depending on what jurisdiction a company is located and where the actual arrest was made, the records may not be usable to make a hiring decision. Although not every state has specific employment laws as to the type of information being used to screen applicants, using arrest records may: 1) be illegal under some State Statutes and; 2) at the very least, discriminatory from a Federal and State perspective. For example, if the ultimate outcome of an arrest for murder is acquittal, then the applicant should not have the arrest record held against them, since they are not guilty of a crime. A survey published by BRB analyzed the quality of information contained in each States’ SDLE repository. (See State Criminal Records Survey, BRB Publications, 11/2004). The results were fairly shocking. The majority of State SDLE repositories do not contain final disposition information. Disposition information is essentially the final outcome from the court system. The court records are the second step where we would look to find criminal records. This will be discussed in detail in the County Court Search section below. For example, in Alabama, Arizona, Colorado, DC, Indiana, and Kansas, just to name a few states, less than 50% of the SDLE records contain final dispositions. Furthermore, almost all State’s SDLE repositories do not contain a complete list of arrests made in the last 5 years. What does all this mean? All in all, you are dealing with a source of information that is extremely incomplete and unreliable. Not every State’s SDLE search is bad however. Several SDLE repositories do contain a high percentage of disposition information and records within the last seven years. For those states, the SDLE search may be a good alternative in putting together a best-practices screening program. The next issues that SDLE records present are turnaround times and cost. Some SDLE records require additional paperwork to be filled out in order to process the requests through the State’s repository system. Other SDLE’s may take several weeks or months to process the requests. Then there is the problem in a few states, like California, where the SDLE is not available to the public. Lastly, almost all SDLE’s charge a significant fee to process the records. In sum, SDLE records prove to be inconsistent when developing a best practices program. In developing a best practices screening program you want it to be uniformly applied across your company to all applicants. SDLE searches are inconsistent with respect to time, cost, and uniformity of records. In employment law terms and EEOC compliance, hiring managers are potentially creating a disparate practice if they only use the SDLE as a source for criminal records searches. If you have an applicant that has lived in a state that does not enable you to do a SDLE search, then you may have to defer to not doing the search or using another source of information not uniform to your screening program. The risk of liability for discrimination arising from systemic employment practices is perhaps one of the most significant HR compliance-related challenges facing large companies today. With both the OFCCP and the EEOC increasingly applying sophisticated statistical and analytical models to company data to look for statistical evidence of discrimination in company hiring, promoting, and discharging practices, using arrest records (SDLE) from one state you do business in and the final disposition (county criminal search) of records in another state you do business in, may lead you into trouble. Processing SDLE on some of your applicants, but not all because of availability, time restraints in getting records, or internal cost control measures, may also be creating a disparity on the type and quality of search you are performing throughout your overall criminal screening program.
County Courthouse Records – At this time you are probably asking “what source does a hiring manager use to keep a uniform criminal search program?” The answer is the next step in the criminal process example we started with. After being arrested, the person will be asked to enter a plea. The person can enter a plea of “not guilty”, “no contest”, or “guilty”. If the person enters a not guilty plea the judge will decide on the terms of their release or if they will be released pending their trial. If the person enters a plea of no contest or of guilty, there will not be a trial. In this situation, the person will either be sentenced immediately