What is included in a good criminal background investigation?

A good criminal background investigation begins by researching the identity of your applicant. This research of various information sources provides a strong indication as to whether the name and date of birth provided by the applicant match the information in the files of credit bureaus, driver licensing bureaus, and commercial firms. It will also suggest maiden names or other aliases that should be researched, as well as previous addresses used by the applicant.

Next, the applicant’s information will be run through a criminal records database that includes information from multiple jurisdictions. This database is compiled of criminal records purchased from counties and states across the country. Although this database is often sold as a “nationwide” search, it is not. This search is only useful for identifying potential cases related to the applicant.

After conducting the database search, criminal records should be searched in each county, state, and federal court jurisdiction associated with the applicant to provide an accurate criminal history. Additionally, any criminal records found using the criminal records database should be verified with the county courts.

Why search the county records when I can buy a statewide criminal records report?

Most states maintain some sort of central criminal records database and many of them make these records available to the public. However, in most cases, these records are incomplete because the county courts do not share a single computer system with the state, and the information is not provided by the county courts on a regular basis. Also, many states limit which records are released to the public even though the same record may be available at the local county courthouse.

For example, according to a study conducted by Imperative in November 2007, of the 371 inmates on Texas’ death row, nearly half (46%) of the offenses that put them on death row were not listed in Texas’ state criminal records database.

Where can I get a national or nationwide criminal background investigation?

Although some companies advertise products called “national” or “nationwide” background investigations, no reliable source exists for such an investigation. What these companies are really selling is what we call a multi-jurisdictional criminal records database. This is a database compiled of criminal records purchased from counties and states across the country.

Because most counties won’t sell their information to the database companies and most state repositories are notoriously incomplete, these databases miss as many as 60% of the criminal records found when researching the county records directly.

Additionally, we routinely find incorrect information in these databases. These databases often associate criminal records with the wrong individual and the case information is consistently incomplete or not up to date.

In a good criminal background investigation, such databases should only be used as a “safety net” search, possibly identifying criminal records in jurisdictions not researched because they were not associated with the applicant’s residential history. If records are found with this database, the details of the records should be confirmed at the county level before reporting possibly erroneous or incomplete information, a process required by the Fair Credit Reporting Act.

How long does a criminal background investigation take to complete?

Our target is to complete criminal background investigations by the end of the third full business day. In practice, we complete most investigations within 52 hours.

In some cases, however, local court circumstances delay some pieces of research. For instance, a handful of courts only allow court employees to search the court’s’ records, and, therefore, we are at their mercy. Often they are prompt in completing our requests, but sometimes they get busy with other duties and research can be delayed.

As an employer, should I care about criminal cases that didn’t end in a conviction?

Under the Equal Employment Opportunity Commission’s guidelines related to employer’s’ use of criminal and arrest records, an employer should evaluate the following issues when deciding how to use records:

  • The likelihood that the individual engaged in the alleged conduct;
  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction or arrest; and
  • The nature of the job held or sought.

Because the courts have more pending cases than they will ever be able to take to trial and the jails are often overcrowded, state legislatures have devised many alternatives to criminal convictions. One example of these alternative dispositions is deferred adjudication. This often requires the defendant to enter a plea of guilty or “no contest” and agree to complete probation in place of jail time. If the defendant successfully completes the terms of the probation, the case may be dismissed. Such cases could potentially be important to our clients depending on the nature of the offense and how it would relate to the client’s’ business.

Some states’ laws add further restrictions on the use of criminal records, California being most notable. Imperative can help you identify the state laws that may affect your situation.

Do I have to get permission to run a background investigation on an employment applicant? How about on a current employee?

The Fair Credit Reporting Act (FCRA) is the federal law that governs background investigations, even when no credit report is requested. It treats employment applicants and current employees the same.

Prior to requesting a background investigation, the FCRA requires you to notify your applicant that a background investigation will be conducted in relation to his or her prospective or current employment. This notification must be on a separate document used specifically for this purpose. Your applicant must also provide you with written permission to obtain the background investigation. In order for our clients to meet both of these requirements, we provide our clients with a model disclosure form that is compliant with the FCRA’s requirements.

Some states have specific additional disclosures that must be made to applicants or employees. Imperative can help you identify the state laws that may affect your situation.

If I decide to not hire someone because of your investigation, what am I required to do?

Under the FCRA, if the information in the background investigation may negatively impact an individual (e.g. they are not hired, they are terminated, they are demoted, etc.), the employer must provide the following documents to the individual prior to making a decision:

  • A copy of the background investigation report,
  • A document outlining their rights under the federal law.

Our web-based report management system will print these documents out for you.

Then, after you make a decision that negatively impacts the individual, the FCRA requires that a second notice by provided to the individual notifying them of the action. This notice may be written or oral, but we suggest that this notice always be in writing.

Many of our clients prefer that we complete this process on their behalf. We feel this is a very effective means of ensuring our clients are in compliance with the FCRA.

Some states have additional laws affecting the use of background investigations in the employment process. Imperative can help you identify the state laws that may affect your situation.