What is the problem with this type of data mining? Mined police blotters, mugshots and correctional records are stored data, meaning that this information is pulled into searchable database and the sources from which they are obtained do not track the ultimate final disposition of a criminal case. If a case was a case dismissed, entered into a pre-trial intervention or similar diversion program the data mined will not know. If an individual has their record expunged, the record will not be found in a court search or through research through the State Police but the record is not expunged in a data mining database. Stale data, inaccurate data will lead to invalid hiring decisions and the potential for lawsuits.
One issue with this process is that the vast majority of individuals that commit a crime do not spend even a day in a correctional facility and as a result, these records will be missed by data mining correctional records. Another issue with data mining is the lack of identifiers to link the individual applying for work with the individual who allegedly has a criminal record. The result is that too many individuals are incorrectly identified as having a record resulting in the rescinding of a job offer or actual termination from a position they actually started employment. If an employer does not follow the guidelines of the Fair Credit Reporting Act (FCRA), which unfortunately far too many employers do not, the required practice of notifying the candidate that a decision has been made as a result of information developed through a background investigation will not catch the error. The candidate suffers egregious consequences as a result of data mining. If employees in Human Resources are not members of the Society of Human Resources Management is unlikely they will be aware of the FCRA.
It wasn’t too long ago that every state had a publicly available website where any individual, employer or background vendor could search correctional records in every state to determine if that person was ever confined in a state facility. Not only was there concern for the prior offenders privacy, incarceration data could be mined by a background vendor (and it is) and stored on their database to cross-reference candidates for employment.
New York and New Jersey are two recent state correctional agencies that recognize the issue both from the privacy standpoint and the issue with mining of data that could be used in research for employment purposes decades later to deny employment. Now New York a New Jersey join a long list of states that have blocked incarceration records in state facilities of former inmates and now only provide locater services for current inmates.
States are now blocking historical records of incarceration in state facilities but, what about the over 3000 County incarceration facilities plus thousands of facilities in large cities that allow public access and are available to mine historical inmate records? Mugshots.com and Bucks County Jail recently came under fire and have been the subject of litigation due to the more than 67,000 incarceration records that are mined through the county jail lookup. The result, the posting of mugshots on the Internet and available for everyone to see.
The subject of the initial lawsuit was originally charged with disorderly conduct and spent one night in in the Bucks County jail. After entering into a deferred adjudication program, (probation in lieu of proceeding) the individual expunged the record of his arrest. This arrest will not be found in a search of the Bucks County Court or if a search is conducted through the Pennsylvania State Police. But mined data is stored for an eternity and Mugshots.Com still posted the mugshot and the associated offense of the individual online, 13 years after the record was expunged. This is the problem with mined data and national criminal record checks.
Counties correctional facilities are now joining states and blocking public access to historical confinement records. So what are the ramifications of blocking of correctional records? The scope of data that can be mined is restricted and fewer records will be accessible in national criminal record checks conducted by background vendors. The good news is that there will be fewer incidents that result in a denial of employment.
Forty-two states across the country have provisions to access State Police or state administrative court records for employment purposes. Each state charges a fee to access these records and since this is a source of generating revenue for the state budget, states jealously guard criminal search information to protect their business model.
Just one example will highlight the fallacy of a national criminal record search. The only method available to conduct a criminal search on a statewide basis in New York is through the Office of Court Administration. This agency charges $95 per name to conduct a criminal search in New York. The State of New York has shut down public access to County criminal record checks forcing users to utilize the Office of Court Administration to generate revenue.
So with New York as an example, what will a national criminal record search develop in New York? Records from the Office of Court Administration are not accessible, records from the County courts are not available and neither are court records for hundreds of town and village courts. The national criminal search gathers publicly available booking information from the county and state jails throughout New York. If an individual commits a crime and is not incarcerated in a county or state jail, which occurs far more frequently than actual confinement in a jail, the national criminal search will not have this offense.
Only the most serious offenses result in incarceration in a state or county facility. When relying on a national criminal record check employer should be wary and understand that this criminal search will not develop every criminal record in New York, not to mention the rest of the country. Reliance on the search places an employer at risk, not to mention the public. What kind of background check was conducted on the Uber or Lift driver that is picking you up at midnight? The $95 criminal search through the New York Office of Court Administration? Or a $8 instant national criminal record check? We think you know the answer.
Candidates beware, it is possible that the national criminal record search may report that you have a criminal record check when in fact you do not. How can this happen? Since this type of criminal record search utilizes noncriminal justice entities such as public booking data and admissions into prisons, information such as personal identification, date of birth and Social Security number, are limited and many times not always included in this record result. Background vendors utilize algorithms to determine if the available information developed in this record check matches personal information on file in massive databases. Due to the sheer number of criminal record checks huge background vendors conduct, they do not always follow Fair Credit Reporting Act (FCRA) guidelines that protect candidates for employment that inaccurately attribute a criminal record to a candidate.
When a criminal record is found through a national criminal database and attributed to a candidate, the background vendor is required by the FCRA to conduct further research through a primary source such as the State Police, the County Court or other state criminal agencies. Too many times, this vital step is missed by the background vendor and a criminal record is inadvertently attributed to the candidate resulting in the rescinding of a job offer.
Think it won’t happen to you? Do a Google search on FCRA lawsuit and there are over 233,000 search results. Massive class action lawsuits have been filed against the largest background vendors in the United States for failing to abide by this very simple process.
At one time, years ago and prior to the Internet age, criminal record research was actually conducted by an individual going to the County Court where the candidate lived and did a manual search of paper records. Now we are in the age of data mining where programming reaches out and siphons off of numerous data points and stores this data for years, for decades, stale and often inaccurate information and without any programming to update final dispositions or expungement of the criminal record.
A note to all candidates, expungement of your record is a priority. You should contact the court in which your case was heard. States around the country are becoming more lenient and are expanding the types of offenses that can be expunged. It is probable that most cases in which a candidate was involved can be expunged. Most courts have set up expungement procedure that can be completed without utilizing an attorney.
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