Meeting Due Diligence: The Dangers of Instant Background Checks

“Negligent Hiring” has become a buzzword within human resources, and for good reason: it describes a legal claim made against a company for hiring someone with a criminal history record, or known negative reputation, that could compromise other employees’ safety, the general public’s safety, or affect the hire’s ability to perform the job.

In some cases, hiring someone without performing due diligence can lead to litigation.

Due diligence, then, refers to a company taking reasonable steps to avoid damage or injury to people and property, whether it is the general public or the company itself. Due diligence does not mean a person’s criminal history record always be held against them in the hiring process; it means that a business should be fully informed about the person they are hiring, any criminal history they may have, how much time has passed since the crime was committed, and how it could affect someone’s ability to perform their job safely.

Conducting background checks and pre-employment screenings is the easiest way for a company to implement due diligence in its hiring process, and it’s estimated more than 90 percent of companies are conducting some form of employment-related background checks. However, not all background checks are created equal, and none of them are foolproof.

The best, most thorough, type of background investigation uses multiple sources to compile its information, as it draws data from local, state, and federal databases, and augments these searches with what is called a National Check or National Criminal History that uses an electronic repository with access to millions of records. Using all these resources together creates an overlapping web of searches that provides the greatest amount of information available and meets the true due diligence standard.

Unfortunately, the National Check is sometimes billed as an Instant Background, with the promise it’s the same as a report using multiple sources. This isn’t the case.

Although the National Check has access to online databases including the Fugitive List, Interpol Most Wanted, National Sex Offender Search, and a plethora of state and county record searches, it can’t reach court records that are stored offline, and could potential find outdated records.

For example, in our home state of Georgia, only 9 of 159 are available online and report to National Check databases, which means it would be possible to miss an assault charge in Baldwin County or a theft charge in Jones County if an employer is only using the National Check or Instant Background during the hiring process. A charge that was ultimately dismissed could be reported as a conviction, because the National Check used old information, and that could lead to a violation of hiring laws. Conducting a full background, with state or county searches, would meet the standard of due diligence.

We recommend that a National Check be used to augment state and county searches, as it allows us to cast a much larger net and find charges in places where an applicant has not lived in a long time or committed while traveling.

Finally, using only the National Check as a background investigation can run an employer afoul of the Fair Credit Reporting Act’s Section 613, which stipulates each reported criminal charge on a National Check must be verified with the county or state court where the charge originated. Called a Contemporaneous Notice, this requirement is why online instant searches have a disclaimer stating the information cannot be used for pre-employment screening.

As a Consumer Reporting Agency, PSI is accountable our clients and the person who is undergoing the background check. For this reason, we follow section 613 of the FCRA by verifying every record we find on our National Criminal Super Search with the court where the charge originated, so our report is compliant and accurate as possible.

Our recommendation is that a due diligence background screening cover all jurisdictions on a state or county level where someone has lived for the past 7 years. In addition, the report should include a Federal Criminal History search of all federal courts, a Social Security Number Trace to validate the applicant’s identifying factors and residential history, and our own national search, the National Criminal Super Search.

If you have any questions about the background check process, regulations covering how you can use background checks when hiring, or just need more information about certain searches, please reach out to our Client Relations Specialist, Stephanie Cook, at scook@psibackgroundcheck.com or by calling 706-413-4182 for her direct line. We look forward to working with you and determining the right mix of searches and services you need for your business.

*This should not be considered legal advice. As with any issue of legality, we recommend that you contact your corporate attorney to ensure your company is in compliance with the FCRA and applicable state laws.