An important lesson was re-learned in a recent settlement between plaintiffs alleging discrimination over criminal background checks and the U.S. Census Bureau: FBI fingerprint checks are slow, incomplete, and unreliable.
Applicants for work as enumerators for the U.S. Census Bureau for the 2010 census – the ones that show up unannounced and people’s houses – were required to undergo a criminal background check. Step one in this process was a check of the FBI’s criminal history database. If an arrest came up in the check than the Census Bureau advised applicants to then go get “official court documentation on any and all arrest(s) and/or conviction(s)”. This is good advice because FBI records do not contain dispositions and can present a false view of a person’s criminal history. Name-based checks done by commercial criminal background check companies provide a faster, more complete, and more reliable view of a criminal history.
FBI Assistant Director Stephen Morris said that “[t]he misnomer is that FBI has everything that exists on criminal history records in some big repository, and that’s simply not true.” We also know that that the U.S. Attorney General in a report wrote that
Contrary to common perception, the FBI’s [fingerprint] system is not a complete national database of all criminal history records in the United States. . . Because of inconsistent state reporting requirements, some criminal history records involve offenses that are not submitted to the FBI. Other records that were submitted to the FBI do not have fingerprints of sufficient quality to be entered into the system. Moreover, many criminal history records may contain information regarding an arrest, but are missing the disposition of that arrest. Currently, only 50 percent of. . . arrest records have final dispositions
How can an employer get a more reliable criminal check to protect her customers (in this case homeowners who come in to contact with census takers)? Employers are well-advised to conduct a name-based (not fingerprint-based) search using a private, commercial criminal background check firm. That’s what the U.S. Department of Justice advised in its report on criminal checks.
[c]ommercial databases…offer other information that may not be available through state and FBI repository checks. A search of commercially available databases may reveal charges and dispositions not reported to the state or national repositories [and] records relating to some offenses are not reported to the FBI…Even state repositories may not have records on less serious offenses that have not been forwarded by local law enforcement agencies. Some of this information may be available through certain commercial databases.
The case is Houser v. Pritzker, 1:10-CV-03105, U.S. District Court for the Southern District of New York.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More