SPOTLIGHT: Background checks
March 2024
Spotlight on background checks
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Over 70 million Americans have "some form of criminal record," according to the Department of Labor.
According to the National Association of Professional Background Screeners (NAPBS), 95% of U.S. employers conduct employee background screening.
77% of U.S. employers have a documented background screening policy.
70% of workers "confessed they had lied on their resumes," with 37% admitting they have "lied frequently," according to a 2023 survey by ResumeLab.
Asked what they lied about, 11% of respondents told ResumeLab they have been dishonest about education credentials.
According to a 2017 survey by NAPBS, 53% of employers said they don't conduct any education verification on any job candidates.
Source: NAPBS, Verifirst, ResumeLab, Department of Labor
A new study published in the journal Criminology suggests that background checks relied upon by employers and landlords often contain "bad data" and can miss "significant wrongdoing."
The multi-institutional study by researchers from the University of Maryland and Rutgers University found that the "loosely regulated entities that businesses and landlords rely on to run background checks produce faulty reports."
It's not just employers that rely on background checks in making hiring decisions. Commercial background checks are relied on by landlords, schools and attorneys.
The newly published research suggests that background checks can provide "erroneous results" in "both ways". Such checks can "miss convictions that a potential employer would want to know about, or they can falsely assign a conviction to an innocent person through transposed numbers in a birth date, incorrect spelling of a name or simply the existence of common aliases."
Researchers began by obtaining "official state rap sheets containing all arrests, criminal charges, and case dispositions" recorded in New Jersey. Researchers then "ordered background checks from a regulated service provider—the same type of company that an employer, a landlord, or a school system might use." (They also utilized background checks from an "unregulated data provider" that advertises online background checks.)
Researchers found "numerous ‘false positive’ results, reporting charges that our study participants did not have, as well as ‘false negatives,’ not reporting charges that our study participants did have.”
Over 50% of the individuals in the sample "had at least one false-positive error on their regulated and unregulated background checks," and "about 90% of participants had at least one false-negative error."
The study identified a "number of problems with private-sector criminal records," including "mismatched data that create false negatives, missing case depositions that create incomplete and misleading criminal records, and incorrect data that create false positives."
Researchers say the "driving force behind errors in background checks is likely erroneous use of algorithms," which link records together "based on names, aliases and birth dates rather than fingerprints." The algorithms "end up lumping people together who are not the same person.”
The "consequences of the errors" can be grave and can include "limited access to employment and housing."
"There’s a common, taken-for-granted assumption that background checks are an accurate reflection of a person’s criminal record, but our findings show that’s not necessarily the case."
Read more via University of Maryland, Criminology
For all the news about employers increased willingness to hire workers with criminal records, some job seekers say they continue to "face a tangle of barriers" to finding work.
Despite "historically low unemployment and millions of open jobs," many workers with criminal records say they "continue to struggle to find employment."
Employers increasingly express willingness to "hire workers with criminal records," but experts say a "tangle of obstacles remains for those workers trying to find stable employment."
Each year, 650,000 people are released from state and federal prison. Yet, the unemployment rate for "formerly incarcerated" workers stands “at around 30%.” Experts say the formerly incarcerated are an “untapped source of prospective labor.”
For candidates, a criminal record may not be the only barrier they face. They may also be challenged by a "lack of training or job placement support" and "regulations preventing them from working in a variety of professions." They may have issues finding housing and generally adjusting to "life after incarceration."
Often, there are unforeseen complications, like a formerly incarcerated man who was able to obtain a position as a janitor at a New York airport, only to be "fired when a background check came back showing he had served six years in prison for illegal possession of a firearm, a violation that prevented him from getting clearance to work past airport security checkpoints."
Many states prohibit employers from asking about criminal histories when applying for roles. Employers can still run background checks after making a conditional offer, and they can "rescind the offers under certain circumstances based on the findings."
Other states have restrictions on what licenses can be obtained by individuals with criminal convictions. Such restrictions can impact becoming licensed as an electrician, tow truck operator, cosmetologist and real estate agent.
Experts say individuals with drug and violent crime histories have "particularly acute" challenges. According to one study, “75% of hiring managers said they were unwilling to seriously consider applicants convicted of drug, property or violent crimes.”
It’s the best of times and the worst of times. It’s the best of times in that companies now talk openly about second-chance hiring; we have more examples of how employers can be successful hiring talent with past convictions. At the same time, we have huge barriers that remain. We have to address those barriers."
Read more via NBC News
The use of automation in the background check screening process is on the rise, with more and more screening platforms using AI and other automation processes to generate reports.
Background check providers like First Advantage say automating the process through AI and robotic process automation (RPA) "enables 90% of U.S. criminal searches to be automated and allows us to complete 70% of U.S. criminal searches within the first hour and 90% within the first day."
Experts say it's not always clear exactly "what type of AI" is being utilized by background check screening services and that general concerns about the accuracy and transparency of algorithms remain concerns when applied to background screening. Because "none of these automated programs are public," it is "difficult to know exactly what their algorithms look like or what their matching practices look like because they don't share it and they refuse to," experts say.
AI could, some argue, be a positive in the background screening process. Continuous learning models could improve the quality of background checks, and “help identify trends and areas of improvement, leading to higher-quality background reports.” Whether that will be the case over time remains to be seen.
Read more via TechTarget, First Advantage IPO filing (via SEC)
Last month, the Superior Court of Los Angeles County announced new changes to the way background check providers can search its databases.
"Effective close of business February 23, 2024, the Superior Court of Los Angeles County will no longer include the month and year of birth as criteria in its criminal name search engines," read the brief announcement.
The decision to cease allowing searches by birth month and year come as the result of a California Court of Appeal decision declaring that "those searching public criminal records could no longer use birthdates and driver’s license numbers." The Supreme Court upheld that decision.
Experts say the change “could significantly affect background screenings that rely on Los Angeles County data.”
Screening companies will not be able to use month and year of birth, making the process of distinguishing between records impossible, in some cases.
"Checks for individuals with common names" will be much more likely to result in inaccurate reports.
Employment candidates who have relevant records in the county's system “should anticipate potential delays in obtaining screening results.”
Employers should be aware of the “risk of receiving inaccurate or incomplete data due to the courts’ system changes.”
Given that the "Fair Credit Reporting Act requires background checks to utilize additional identifiers" that extend beyond just a name, “some searches may prove impossible to complete.”
Read more via JDP, Forbes
In February 2024, new rules that "impact employer practices regarding criminal background screening" became effective in Pennsylvania. House Bill Number 689 (HB 689) which was passed in December 2023, grants employers "immunity from liability for claims associated with the effects of expunged records or the lawful utilization of criminal record history information if an applicant voluntarily discloses an expunged conviction." The new provision was designed to "clarify potential ambiguities under existing state law regarding an employer’s liability for negligent hiring when hiring an individual with an expunged criminal record who subsequently engages in misconduct." The legislation also "extends the scope of automatic expungements to include pardoned cases." The legislation also expands the ability of individuals with past convictions to limit access to their criminal records. Previously, individuals who were "free from conviction" for ten years could "petition for limited access." That threshold was lowered to just seven years.
Read more via Forbes
A cyberattack on the Kansas court system in October 2023 resulted in significant delays for background check vendors. The incident highlights how reliant background checks are on state and local record systems, which can be vulnerable to cyberattacks.
State officials said a "sophisticated foreign cyberattack" forced them to shut the court records system down.
Systems in all but one of the state's 104 counties were impacted.
The months-long outage "forced courts in the affected counties to return to having documents filed on paper."
According to news reports, it was not until December 2023 that Kansas “started bringing its computer system for managing cases back online.”
According to news reports, online access to the state's court system was "largely restored" by January 2024.
The delays meant that workers were left waiting to start new roles due to delayed background checks.
The Kansas court system does not conduct background checks, but third-party vendors that conduct checks are often completely reliant on state and local court record systems.
Following the cyberattack, the state's court system had a lag in entering paper filings into the system. Background check vendors that were reliant on the public access portal had to wait until those records could be entered into the system.
Read more via KWCH, Kansas Judicial Branch, Associated Press
The Japanese government is considering a 20-year background check for jobs that involve working with children, according to news reports.
The proposal is aimed at preventing those with past sexual offense convictions from gaining employment in a role that involves working with children.
According to current Japanese criminal law, a "sentence ceases to have effect 10 years after a person serves out a prison term to facilitate rehabilitation and ensure occupational freedom."
However, some in government believe that a "longer disclosure period is needed in light of the high rates of recidivism among sex offenders over 20-year periods."
Advocates for the change include parent groups that have been "lobbying for the introduction of the system to protect the safety of children after two men registered with a babysitter matching app were arrested in 2020 in separate cases for sexually assaulting children in their care."
Read more via Kyodo News, Japan Times
