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INVESTING BEFORE THE LOSS: PREVENTION & DETERRENCE

BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK When hiring employees, retaining a client, complying with know your customer procedures or screening an executive, background checks should be commonplace. You know you need to do them. But what are the best and most efficient methods? Consider how often to perform these checks, whether or not to outsource them, what information you should 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 is the west coast division of Kroll Screening Services, Nashville, TN a national provider of employment background screening, drug testing and physicals. He is a founding member and on 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 several national conventions to educate professionals in human resources, security and other industries. Mr. Nadell has written many articles, has been quoted, has been featured on television programs including The Bloomberg Report and ABC News with Peter Jennings, and has been 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 employment issues and a member of many organizations. In 2004, Barry Nadell was honored with the Excellence in Human Resources award from the SHRM affiliate PIHRA for his valuable contributions to the field of Human Resources. In addition, he has been an industry advocate in his state, California, and in DC on legislation relating 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 Introduction 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 under Federal 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 victims annually. 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Homicide 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 a previous 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 a secure 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. NOTES

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK In 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 employment application 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 practices when workers commit acts of violence
Source: Victims of Omission ABA Journal, March 1999

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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-Workers Cost of Termination Cost of Theft/Shrinkage Cost of an Unproductive Employee until Terminated
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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Cost of Absenteeism Cost of Investigations Cost of Severance, Claims or Lawsuits NOTES

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 United States 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 as required Consumer Credit Reporting Reform Act of 1996 (15 U.S.C. 1681n, 1681o, 1681s):
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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Penalties on those who do not comply include actual damages, punitive damages, costs, and attorneys fees. In addition, civil and criminal penalties may apply. NOTES

Permissible Purpose Section 604 of The Fair Credit Reporting Act: 1. In response to the order of a court having jurisdiction 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 the consumer 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 for employment purposes; or c. intends to use the information in connection with the underwriting of insurance involving the consumer; or d. intends to use the information in connection with 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's financial responsibility or status; or e. intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK associated with, an existing credit obligation; or f. otherwise has a legitimate business need for the information i. in connection with a business transaction that is initiated by the consumer; or ii. to review an account to determine whether the consumer continues to meet the terms of the account. g. Section 604(a)(3)(F) would provide a permissible purpose for a landlord considering an application for a rental apartment, or a merchant considering whether 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 a State 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 any written, oral, or other communication of any information by a consumer reporting agency bearing 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 NOTES

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK serving as a factor in establishing the consumers eligibility for Employment Purposes. The term investigative consumer report means a consumer 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 in connection 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. NOTES

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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Rules to Follow Disclosure To Consumers For Consumer Reports 604(b)(2) A. A clear and conspicuous disclosure has been made in writing solely of the disclosure, that a consumer report may be obtained B. The consumer has authorized in writing FTC Staff Opinion Letter UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION WASHINGTON, D.C. 20580 Bureau 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 general principle 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK show 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 three days after the date on which the report was first requested, and B. includes a statement informing the consumer of his right to request the additional disclosures and the written summary of the rights of the consumer prepared pursuant to section 609(c) [ 1681g]; FTC Staff Opinion Letter UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK prominently 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 prominently it appearsis not in a document that consists solely of the disclosure as required by Section 604(b)(2)(A). FTC Staff Opinion Letter UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION 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. NOTES

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Adverse 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

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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 selfregulatory 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK 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 the information during the 30-day period ending on the date on which the report is furnished.
INFORMATION WITHIN REPORT

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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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK consumer 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, personal characteristics, and mode of living A summary of Section 1786.22 of the California Civil Code (consumers rights) A box the consumer may check to receive a copy of the background report*
* Also required in Minnesota and Oklahoma

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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, Multiple storage formats, docket books, computer terminals, microfilm, remote dial access State Repository National Criminal Database Search
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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Most Databases only provide felony convictions Felonies represent about 27% of criminal filings Approximately 2.5% of searches have a felony
Source: GAP Inc.

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Fingerprinting Felony Vs. Misdemeanor Felony Only States: Massachusetts*, South Dakota
*Misdemeanors 5 Yrs 2nd+ offense

Arrest Records
GENERAL INFORMATION FROM BNA

Because members of some minority groups are arrested 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 accordingly have 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 hiring applicants 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK 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?

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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, or information 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 employee or applicant is out on bail or on his or her own recognizance pending trial.

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK California 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 about arrests or convictions as though they had not occurred. Connecticut: The applicant is not required to disclose the existence of any arrest. D.C. Arrest records. May not obtain or inquire into arrest record. Hawaii: It is a violation of law for any employer to refuse to hire, to discharge or to discriminate in terms of compensation, conditions or privileges of employment because of a persons arrest or court record. Illinois: employees may answer questions about arrests or convictions as though they had not occurred. Massachusetts: May not ask about arrests that did not result in conviction.
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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Michigan: Employers: May not request information on any arrests or misdemeanor charges that did not result in conviction. Nebraska: employers: May not obtain access to information regarding arrests that do not lead to conviction New Hampshire: It is unlawful discrimination for an 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 ask about any arrests or charges that did not result in conviction, unless they are currently pending. Rhode Island: It is unlawful to include on an application 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 NOTES

Information Available Convictions: How Far Back Can We Report CA CO KS MD MA MT NV NH NM NY TX FCRA CLARIFICATION ACT STATE LAW 1785.13.6 & 1786.18.7 CRS 12-14.3-105.3 50-704 14-1203 MGL 93-52 MCA 31-3-112 NRS 598C.150 HRS 359-B:5 56-3-6 ART 25- 380-j CH 20 20.05 7 years 7 years $75K 7 years 7 years 7 years 7 years 7 years 7 years 7 years 7 years $25K 7 years $75K

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK WA RWC 19.182.040 7 years $20K NOTES

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 from most 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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TEST STATES

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Nebraska Maryland Florida Michigan Washington, D.C. Arizona California Nevada Pennsylvania Texas Tennessee Indiana Illinois New Jersey Louisiana

The National Criminal Database misses cases in many counties where the subject did live!

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK

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

NAME MATCHES: A 12 B 19 C 14 D 16 E 14 F 13 G 14 H 13 I 15

NO MATCHING RESULTS: A 7 B 5 C 10 D 5 E 10 F 8 G 9 H 10 I 8

NO MATCHING CONVICTION INFO BUT OTHER HITS: A 6 B 1 C 1 D 2 E 1 F 4 G 2 H 0 I 2

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

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK National Criminal Database


BEST PRACTICE

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JURISDICTIONS: Use a CRA that analyzes each jurisdiction covered by every vendor ERROR RATE: To reduce error rate, use the CRA that researches with the vendor who purportedly has data within the jurisdiction the person lived or had lived RESULT: More likelihood to reduce error rate while still locating other potential jurisdictions containing convictions Other Databases
TEXAS CRIMINAL CRS DATABASE: KNOWN CONVICTED FELONS: NO RECORDS FOUND

Charge: Murder of a child Jurisdiction: Rowlett, TX Sentenced on: 2/4/1997 Currently on Death Row Charge: Murder of husband, son, daughter Jurisdiction: Harris Cty, TX Sentenced on: 11/17/1988 Currently on Death Row Charge: Murder & Kidnapping Jurisdiction: Austin, TX Sentenced on: 5/25/1995 Currently on Death Row Charge: Murder Jurisdiction: Houston, TX Sentenced on: 3/2/1995 Currently on Death Row Charge: Robbery & Murder Jurisdiction: Harris Cty, TX Sentenced on: 9/2/1980 Currently on Death Row

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Charge: Possession of Cocaine Jurisdiction: Denton, TX Sentenced on: 7/15/1996
SEX OFFENDER DATABASE

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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, North Carolina, 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 fingerprints State repositoriesdata collected: The Sources of the majority of states records are from state (county) courts and law enforcement. What information is reported, when it is reported, and how it is reported will all affect the quality and completeness of state data.

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK For Example: 32 states require prosecutors to report to state repositories of a decision to decline prosecution of a case. 35 states and DC require law enforcement officials to notify the state repository when an arrested person is released without formal charging, but after fingerprints were submitted. Federal Criminal Record Indices and Repositories 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 NOTES

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK AlaskaCriminal 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

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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 access their 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. 6.8 million (Approx 11%) records are not. 27 states have fully automated criminal record files 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK 42 states use computer edit and verification programs as part of data quality procedures
STATE REPOSITORIESRECEIVING DISPOSITIONS OF RECORDS

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21 states report they receive final felony trial court dispositions for 70% or more arrests within last 5 years. Only 10 states report they receive 100% of final trial court dispositions. 6 states do not require felony trial courts to report dispositions to the state repositories. 47 jurisdictions report they receive final court dispositions that cannot be linked to arrest records in the database. The overall average is 18 days between the date of 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 the receipt 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 without dispositions. 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 on subjects consent and access methods.)

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STATE REPOSITORIESFINGERPRINTSUPPORTED RECORDS

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42 states, representing 94% of the US population, have records that are 99-100% fingerprint supported In 4 states and DC, only 30% to 85% of arrests are fingerprint supported In Massachusetts there are no fingerprintsupported criminal records The overall average is 13.7 days between the date 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 Check System (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 Divisional Courts


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TAKE CAUTION WHEN USING FEDERAL CRIMINAL COURT RECORDS

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Lack of good identifiers Limited number of records Greater chance of false positives

THE NATIONAL CRIME INFORMATION CENTER (NCIC)

An automated database of criminal justice and justice-related records maintained by the FBI. Includes wanted and missing persons, stolen vehicles, 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 pointer system of persons arrested for felonies or serious misdemeanors under state or federal law. As of 11/2004, III has 47,832,397 criminal records, of which 33,370,410 are statesupported and 14,461,987 FBI supported. Meant for the interstate exchange of criminal history records. Includes identification information such as name, 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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NATIONAL CRIME PREVENTION AND PRIVACY COMPACT

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Effective April 1999, establishes formal procedures and governance structures for use of the III. Designed to facilitate use by states and eliminate need for FBI to maintain duplicate data about state offenders. Key Conceptall participating states will provide 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 the data, rather than the law of the state holding the record, governs the use. As of March 2003, 20 states have joined the Compact (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 screen persons applying for a firearm Personal identifiers used to match NCIC, III, and the NICS index NICS Index contains records of over 1 million people prohibited from possessing a firearm NICS shares disposition information received during process, when the NICS finds information 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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK Be careful! Headline reads: Police Urge Sex Charges be Filed against Ex-Coach
Source: The Arizona Republic

NOTES

Other DatabasesWhat Does it All Mean? Know the strengths and weaknesses of the state repositories 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 Fraud Report Terrorist Search (OFAC & Prohibited Parties)
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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK 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 April 1998. California had the largest number of offenders in its registry with over 88,800 registrants (23%). Texas had the second largest registry with almost 30,000 registrants.
Source: U.S. Department of Justice, Bureau of Justice Statistics, March 2002, NCJ 192265

NOTES

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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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK


Reference Cite/Code: Fair Employment and Housing Act: PreEmployment Inquiry Guidelines. FAIR EMPLOYMENT PRACTICES 453:3561 (BNA). Smith, William C., Victims of Omission: ABA Journal, March 1999 United States Department of Justice, Bureau of Justice Statistics, March 2002, NCJ 192265

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BACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK NOTES

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