Criminal Background Checks: A Libertarian Issue

Criminal background checks are pretty common in the workplace these days. You fill out the application, sign the consent form and off it goes into the ether. But what actually happens when a background check is performed? Worse, what happens when something is returned on your background check? Even worse, what happens if something is returned on your background check and it’s incorrect?

There are many different companies that purport to perform pre-employment background checks but what are they really reporting and where are they getting the information? You may be surprised to know that many background check companies have their own database of information and they are not really accessing public records per se. These records come from a variety of sources, sometimes purchased from state information clearinghouses and other vendors. The search information is entered based on the information on your job application; name, date of birth, social security number, home address, previous address history and it all churns around and returns a result.

What kind of result, you may ask. Well, that depends on multiple factors. The biggest factor is your social security number, but probably not for the reasons you think. Most courts these days mask your SSN for the protection of your privacy and that’s a good thing. However, that means the search engine then searches for information based on your name and date of birth. There are 320 million people in the United States. That means you share a birthday with approximately 876,712 people in this country. If you have a unique name, that’s usually no big deal but if you have a relatively common name, you can get someone else’s results. The Social Security Administration has a list of the most common names for children dating clear back to 1915. has a list of the most common last names in the United States. So let’s just say, if you were born in 1963 and your name is Michael Smith or David Johnson, you are far less than unique.

Let’s assume that our friend Michael Smith gets a hit on his criminal background check along with a notification from the investigation company and he says, “I didn’t do that! I have no criminal history.” Now he has to contact the new prospective employer and say, that’s not me. He then has to contact the investigation vendor and dispute the result. At this point things are going to get really interesting.

Once a result is disputed, the vendor has 30 days to complete an investigation to verify whether the result is accurate. Why would anyone dispute a result knowing that it really was accurate? Lots of reasons, but the smartest one is because the investigator may not be able to verify it and then has to remove that result from the report. Here’s where things get curious.

Remember, unless you have been fingerprinted and the prints sent to the FBI or state highway patrol, the information on your background check isn’t really official information. What’s more, in most states, clerks of court aren’t really supposed to talk to people from background investigation agencies because they don’t really have a right to this information. So now some subterfuge on the part of the investigator begins. They check to see whether the court has an online docket and if it does, whether there is any information about this person and this incident on the date in question, whether there is any information about verdicts, probation, etc.

I could elaborate about the investigation process but it would be tedious and annoying. The one thing you need to know about that process is the main goal of this investigation is to make certain the investigating company has enough evidence to cover its behind if the investigation ends up in court. They will contact the courts to try to get someone to confirm the information, sometimes they call the prosecutor’s office, the defense attorney, a probation office, the jail perhaps but at the end of the day, the thing that really matters is whether or not they have done due diligence on the investigation, not whether the information is accurate.

So while this investigation is taking place, what happens to the job that Michael Smith or David Johnson wants? That depends on the employer. Sometimes they will wait until the investigation is over if they really like the candidate. But – they don’t have to hold that job. Sometimes they will hire the candidate with the provision that the investigation comes back in their favor, sometimes they will hire them regardless of the investigation, especially if it’s something that doesn’t really affect the position.

Once the investigation is over and the investigator has determined that there isn’t enough information to warrant keeping that incident on the report. The information is removed and an amended report is sent to the employer. Does that mean that the applicant didn’t really commit that crime? Absolutely not. It just means that the investigator couldn’t find enough evidence to confirm that the applicant really is the person connected to the information on that report. A clean background report, unless it is actually conducted with fingerprinting through a law enforcement agency, doesn’t mean your applicant has a clean arrest record.

Want to make things even more complicated? The laws about what is and is not reportable on a criminal background check vary from state to state. Civil rights advocates are actively working in most states to limit what can be reported in an effort to help people with juvenile offenses as well as misdemeanor guilty and no contest pleas attain employment. Take, for example, the case of a man in Utah who got pinched by a red light camera rolling through an intersection. He went to court, pled no contest, paid his fine and went home. It wasn’t until he was job hunting that he found out that he pled no contest to a misdemeanor, not a minor traffic violation, and this red light “ticket” that he thought he paid was turning up on his criminal background check. According to the laws in his state, this incident was reportable and will follow him for the rest of his life unless he goes through the process of getting it expunged. In some states, an arrest that does not result in a conviction is reportable also. Imagine getting pinched for something, proving that it wasn’t you, having the charges dropped but still having that arrest haunt you and your job search. If you are lucky, those items drop off your report after seven years. Sometimes they follow you forever.

Now we know the entire process of a private “background check” company is flawed and pretty much a waste of time and money, lulling employers into a false sense of security. Let’s stop for a moment and ponder the larger implications of this issue.

Suppose you are a person in your late teens or early twenties. You go to a party with some friends, things get a little loud and the neighbors call the cops. When the police show up, some of the less sober partiers get lippy with local law enforcement. Now the police are getting a little irritated and things start to escalate. You decide it would be an excellent time to excuse yourself from the scene, except one of the local officers decides you need to stay put. You explain to the officer that this isn’t your house, you are only a guest and that you’d like to leave because things are getting out of hand. But that officer decides you are the one who is out of hand and arrests you. Sound far-fetched? It’s really not. So now you are in the pokey, you get to call your parents and they bond you out and give you a very unpleasant lecture.

The next day you consult an attorney and the attorney tells you that you can try to fight the charge and it will cost you $1000 or more for him to take your case or you can plead no contest to a misdemeanor and pay a fine of about $200. You weigh up the options and decide the no contest plea makes the most sense. Better rethink that. In the eyes of those background checks, a no contest plea is the same as a conviction. In most states, that incident will follow you for seven years, maybe longer.

In addition to state laws, the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964 also dictate what information is allowed in a criminal background check and what protections are provided to people with criminal histories. The Equal Employment Opportunity Commission has issued guidance to employers about staying in compliance with these laws but it is also important for job hunters to be familiar with them so they can be aware of their rights and how they can respond to potential discrimination issues.

There is a large push nationwide to further limit the criminal background information available to employers. Many advocates for people who have previously been incarcerated argue that these background checks make finding employment so difficult for people with criminal histories that they continue to be punished even after they have served their debt to society. Employers, on the other hand, feel they should have this information to help them better assess the character of a prospective employee.

Our criminal justice machine is a complicated system and it can have far reaching consequences. Unfortunately, the adage “just don’t get in trouble” isn’t always as easy as it sounds. So let’s sum up with these thoughts: 1) unless you are using a law enforcement entity like the state bureau of criminal investigation that is employing fingerprint identification, you are purchasing information from a vendor that may or may not be accurate; 2) a “conviction” on one of these third party reports isn’t necessarily a conviction; 3) a clean background check from a third party vendor doesn’t necessarily mean a potential employee has a clean criminal background; and 4) a conviction on a criminal background check shouldn’t automatically render a prospective employee unsuitable for employment.