Several times over the past 13 years, I have taken a phone call from a disgruntled applicant for a volunteer or employment criminal background check whose chief complaint was that this was the first time the criminal record had shown up. I love these calls. It goes something like this: “Mr Candidate, are you disputing the accuracy of our report?”
“I am upset because I have done background checks through state police and federal agencies, and this has never shown up before.”
“I understand, Mr. Candidate. So you are not saying the criminal record is not yours. Correct? You are upset that we reported it?”
This is an important distinction because if a candidate is disputing the accuracy of our information then we have to initiate a re-investigation. However, if they are only disputing the fact that we found a criminal history that exists but had never before been reported, then the conversation is over. I am always tempted to add:
“Mr. Candidate, can we add your dispute to our marketing materials?”
However, it frequently happens that a prospective client will contact us about our services and will eventually ask a question about a background screening report they had received from their current provider that came back clear when the applicant had a criminal record. How could that be?
A screening firm acting like a used car salesman might say, “Because your current provider does not know what they are doing.” That, however, is NEVER my response. I list the following reasons that a criminal background check might come back clear when there is, in fact, a criminal record. This allows the prospective client to determine if there was a legal justification, or if instead, their current provider was cutting corners that could place them at risk.
Here are the six main reasons a criminal background check comes back clear when the candidate has a criminal history:
- Scope of search limited.
- The background screening industry as a whole operates on a 7 year rule.
- Relying on incomplete criminal databases.
- Alias Name Not Searched.
- It is not uncommon for a screening company to neglect searching alias names i.e. other names your candidate has been known by such as former married, maiden, etc.
- They charge additional fees to search other names.
- Expungement or Sealed Record.
- Most states and the federal government offers some form of expungement. This allows a person with a criminal history to petition the court to have the record removed.
- Expungement erases the criminal record and it is NO longer reportable.
- Federal or State Law.
- The federal Fair Credit Reporting Act restricts reporting of non-convictions to 7 years (unless the salary of the position is $75,000 or more).
- States can further restrict what is allowed to be reported.
- Age of the Record.
- State courts’ archive records- vary from state to state.
- Some states like VA destroy misdemeanor records after 10 years.
- Screening Package is Too Narrow. This is very common and most troubling.
- Only searching county criminal records in county of residence.
- Not searching alias names.
- Relying on incomplete databases or state repositories.
- Scope of search limited.
If the reason the report came back clear was # 3, #4 or #5, then this is based on legal issues that cannot be prevented; however, if it is because of #1, #2, or #6, then your background screening provider is providing a low-quality product and service, and we need to evaluate your screening program.
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