Over the years professional background screeners have striven to provide their customers with the highest quality screening possible. Thus, primary source searches (searches done directly at the state or county levels) became and still remain the benchmark for due diligence criminal background checks. As you know, there isn't an NCIC style national criminal information system available to private sector employers or the vast majority of public and social service agencies. Consequently, credible screening agencies serviced their clients using the best screening tools available under the law.
Database searches (data purchased from primary source and re-sold to end users) have come under increasing scrutiny and regulation by the federal government. The feds know what we have known for years: databases are inherently inaccurate in some critical ways. First, databases will cause the employer to miss records. I have tested several national databases against real court house searches and find them to be about 60% accurate. Databases are updated sporadically. Sometimes this is the fault of the court system that sells the data which, on occasion, is not able to meet the download schedule requested by the re-seller. Often, a re-seller who cannot afford to purchase down loads regularly is the culprit. Last, database accuracy is affected by original sin. Certain state and county repositories are only happy to pass their internal inaccuracies on to a re-seller who is only happy to pass them on to you. For example, the Texas state repository is notoriously inaccurate because Texas counties are not required to report their data. Additionally, there is no uniform "system" in place for the convenience of the counties that do report their data. Nevertheless, the Texas repository is only happy to pass this data on to re-sellers and end users for a fee.
These inaccuracies, however, are not what is upsetting the fed. They could care less if an elementary school using a database missed a record and hired a janitor with a history of molesting children! This is the concern of the tens of thousands of civil attorneys who are standing by waiting for a negligent hiring case to litigate. No, the fed is concerned with consumer rights. They are concerned about protecting a "consumer" whose employment or prospective employment could be jeopardized because an employer considered a potentially incomplete court record. Post-adjudication actions such as expungements or set aside judgments are good examples. As an H.R. professional you should be concerned that the fed is concerned. They are just now beginning to enforce FCRA regulations on database use and have recently leveled heavy fines for non-compliance.
There are two other factors that have dramatically increased the legal exposure an employer now faces by using a database as their primary screening tool. The first has to do with the recent negative press surrounding the two largest criminal database companies. I believe the the FED will take a close look at the way these vendors operate and that the closer scrutiny will filter down to the end users. We have already had an influx of new clients wanting to distance them selves from these companies, all now interested in conducting due diligence screenings. The second is of even more significance and yet has largely escaped the vast majority of database customers (and their legal counsels). This has to do with the vivid disclosures and acknowledgements database companies have made regarding the questionable accuracy of the products they sell. These published statements have placed employers in a "should have known" situation in the event a problem occurs. Triple your settlement dollars if you signed an agreement with one of the database re-sellers that contained such a disclosure. Double it if you read the disclosure on a site like the Texas DPS Web site but ignored it anyway.
Many employers continue to use databases as their sole screening source regardless of the risk, as a cost saving measure. Databases are cheap. But an employer that uses criminal database searches as their primary screening tool is wading into an ever deepening and murky pond of legal exposure. Yet there is a place for database use in employment screening. I believe that databases can enhance a due-diligence screening package to make it even more "bullet proof". A national criminal database can cast a wide net to perhaps identify a crime an applicant or employee may have committed while traveling or on vacation. They can also be helpful in the event your applicant intentionally lied on their application about where they have lived or worked. The national database search is ideal for companies hiring over-the-road drivers, traveling executives or sales staff.
Professional screeners are always searching for ways to improve the quality and effectiveness of the service they provide. That's why we are releasing our newest product, Diligence Plus. Because of complex federal (FCRA) and state regulations regarding the use of database searches in employment screening, we cannot offer Diligence Plus as a primary screening (stand alone) tool. It is only offered as a supplement to a proper, due-diligence search package. Additionally, federal regulations dictate that any hit obtained through Diligence Plus be confirmed by conducting an actual court search in the indicated venue.
We have always believed that databases should never be used as a primary screening tool. We are glad that the federal government agrees and we fully abide by the message they've sent with the encumbrances they've placed on their use. We believe this is best for employers and the safety of their employees and customers. However, we believe that a nationwide criminal database, like Diligence Plus, when properly used and properly integrated into your screening process, can greatly enhance the effectiveness of your due diligence screening program.
If you would like to bullet proof your screening process for little additional cost, please call us. For just $10.00 per search Diligence Plus can give you the best night sleep you've had in a long time.