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Why Instant Background Checks Can Get You In Hot Water Contributed by crimcheck

Mon, April 11, 2016 8:56 PM | FSA (Administrator)

Many websites provide so-called “online instant background checks.” For some employers, this seems like a good proposition.

After all, critical positions need to be filled fast, and if applicants perform extremely well in interviews, a recruiter will want to make a decision promptly. In such scenarios, conducting online instant background checks seems the best idea.

However, their perceived advantages notwithstanding, online instant background checks are a bad idea. In fact, they are basically a ticking legal time-bomb. They can easily backfire, and leave an organization in a multitude of legal problems. Here is a summary of the main reasons why the online “instant” background checks are not a great idea.

  • Adverse records are not vetted for accuracy
  • They use limited sources of information
  • They may return incomplete records
  • They often return erroneous background information
  • They lead to hasty hiring decisions
  • They can open up an organization to lawsuits

Let’s take a deeper look at each of the following pitfalls of online “Instant” searches:

1. Adverse Records are not Vetted for Accuracy

Crimcheck offers a National Criminal Database search, however it is not “instant” because of the fact that every adverse record that is returned in the search is verified with the original source of the record.  In other words, if a National Criminal Database (NCD) search provides a criminal record result, before returning that record to our client, Crimcheck verifies the record with the court. Online instant background checks will return all information that is found to the requester, leaving the employer to wonder if the record is accurate or not.  An NCD search is a good add-on service to add to your basic county search because it can cast a wider search net for criminal records, however the results have to be verified for accuracy.

2. Limited Sources of Information

The major weakness of instant checks is that they can only access limited sources of public records. The only sources of information which they can access are the ones contained in digitized databases. Not all jurisdictions in all states have digitized records. Many courts do not sell their public record information or make it available in an “instant search” form.

There are a few databases which can actually be accessed almost instantly. Examples include the National Sex Offender Registry and Departments of Motor Vehicles in most states. Also, a Social Security Number Trace and Validation can be conducted within one business day.

However, there are certain critical sources of information which cannot be accessed on an instant basis. Examples include courts where an in-person search of the public access terminal is required in order to obtain criminal records. This requires boots on the ground and many courts still have this requirement.

Similarly, when conducting an education or employment verification, there is no guarantee that inquires will be returned instantly. In most cases, such inquiries require at least 2 to 3 business days.

Additionally, most instant records databases contain criminal conviction data which may be stale, not updated, or not suitable for pre-employment purposes, such as arrests, expunged records, and criminal or civil records that exceed some state standards of a seven year search scope.

3. Incomplete Records

Instant searches almost always return incomplete information that requires further research. If an instant search returns a criminal record, how can we know that the record is accurate and up to date?  Most have not been updated by the database provider since the time the record was initially purchased. Many instant databases only update their records from the courts on a monthly, or bi-annual basis.

4. Erroneous Background Information

Instant checks can also return erroneous background information, because they do not provide enough matching identifiers. For instance, they can return criminal convictions for people with similar names. This is actually a common occurrence – and a common source of background check lawsuits.

Most lawsuits actually begin when adverse action is taken on the basis of erroneous criminal records. A case in point is the Delhaize America class action which the company ended up paying $3 million to settle. The lawsuit began with a background check on an applicant which returned a false felony conviction.

Now, returning erroneous information isn’t limited to instant checks. Any background check or court record can return false records. Just like toddlers sometimes end up on the No Fly List for having names similar to that of a terrorist, people with names similar to convicted felons sometimes have criminal records returned on their background checks. This is the reason that the FCRA requires adverse action notices – to give the applicant time to dispute inaccurate information.

The problem with instant checks is that there is no time for verification. Most employment screening companies vet their information by verifying criminal information via the courts. With instant database checks, the time for such vetting isn’t there.

This increases the likelihood of organizations getting background check reports with erroneous information. The only problem is that the reports don’t come with a caveat stating that the information wasn’t vetted, and could therefore be erroneous. When decisions are made on the basis of such erroneous information, lawsuits inevitably follow.

In A Nutshell…

Online instant background checks may seem advantageous because of a quick turnaround time (and also because they tend to be relatively cheap). However, these seeming advantages are offset by the likelihood of the results being incomplete or inaccurate. When making critical employment decisions, using incomplete or inaccurate information can be catastrophic.

If someone with a criminal record is hired because the online instant check did not reveal the record, an organization can end up with the bad scenario where the person hurts a client, fellow employee or manager.

Alternately, if a potential hire is denied employment or an employee fired because the online instant check returned a false criminal record, the organization can miss out on a great employee. In case the aggrieved individual seeks legal advice, the organization can end up paying millions of dollars in settlements.

The bottom line is that online instant background checks carry too many risks. As such, any organization which desires to make decisions on the basis of accurate information should steer clear of them. Otherwise, by attempting to save hiring time through instant checks, an organization can create a scenario which can ultimately lead to wrong HR decisions, a lawsuit and million dollar settlements.

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