The accuracy of criminal records developed by a background investigation company and used by employers for hiring decisions will be a source of litigation alleging violations of the Fair Credit Reporting Act (FCRA) that regulates background screening. Under FCRA Section 607(b), vendors must “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” The failure of the vendor to follow “maximum possible accuracy” can result in litigation against both the vendor and the client.
What is a reasonable procedure? The answer to this question begins with how they criminal record research is conducted. Unknown to most employers, background vendors utilize a variety of methods to actually conduct the criminal record search. As is the case with most industries, products and services, there is often a race to the bottom to reduce costs that result in deficient results.
If you run an Internet search under “National Criminal Database” or similar wording, hundreds of thousands of results will appear that claim they can run a national search either for free or at a nominal cost. Please note that the only national criminal database is the FBI NICS, a fingerprint-based process that is only available for employment purposes for specified occupations such as teachers, law enforcement, licensed healthcare professionals, the banking and finance industry, etc. The FBI NICS is not accessible for employment purposes for the vast majority of occupations in the country.
So what are background vendors doing when they say they are conducting a National Criminal Database search, often referred to as Artificial Intelligence (AI) also known as Algorithm research? The background industry utilizes bots and web scraping to screen information on individuals who have been involved in a sense that becomes the public domain. This includes newspaper articles, Internet reports, state and local confinement in a correctional facility, etc.
Vendors often promote their improvements in AI and machine learning technology. However, the major drawback of this type of search is that the date of birth and other identifiers such as the Social Security number are not available when AI is used. Far too often records are reported to employers that do not belong to the candidate resulting in issues that employers must avoid.
What is a proper criminal record search? Forty-two states and the District of Columbia offer direct access to background vendors to conduct criminal research through a state agency record database for employment purposes. If decisions are to be determined based on criminal records developed by a vendor, which type of search should you rely upon? Information reported to the vendor by a state agency based on a name, date of birth, and Social Security number or software program that scrapes the Internet for data and compiles a huge database of hundreds of millions of unverified records?
Why do vendors use AI? An AI search is fast, cheap and inaccurate. With the click of the button an employer can obtain the results of a National Criminal Database search in just a few seconds but what records are missed by this type of search and how accurate is a criminal record that is reported on a candidate?
Criminal record research through a state agency is a manual process that takes time for vendor’s researchers to log into their account, enters credit card information in many cases, enter candidate information and wait for the results. Then the results of the criminal record research must be entered manually into the report associated to that candidate. Criminal record research through a state agency will also incur a state-mandated fee to conduct the search that is not paid when AI is used to conduct a database search. Employers often erroneously seek the lowest common denominator and the cheapest solution rather than the most accurate and thorough.