Will your vendor report a criminal record that occurred more than 7 years ago?
Human Resources does not need any surprises. An internal audit of your background investigation process should be conducted to determine how your vendor conducts criminal record checks and how far back they will go. Most background vendors will not report a criminal record that occurred more than seven years ago. The most recent example of this dangerous policy is a restaurant owner in Las Vegas who was allegedly stabbed by a DoorDash driver. Now charged with attempted murder, the driver has a long history of serious criminal offenses including attempted robbery, forgery, and drug conspiracy that were not reported by the vendor. These offenses occurred more than seven years prior to his hiring.
DoorDash conducts criminal record checks on their drivers. According to the negligent hiring lawsuit against DoorDash, their background vendor only reported criminal offenses that occurred within the past seven years. Due to the self-imposed time limitation, the vendor did not report the serious offenses committed by the driver to DoorDash. This is a very important self-imposed limitation practiced by vendors in the background investigation industry.
Why would a vendor limit important information from a report? One reason could be to limit liability as a result of the industry’s reliance on what is euphemistically called the National Criminal Database search, which, in reality, is neither national nor a criminal database. Vendors that promote and conduct National Criminal Database search have a good reason to limit liability. This type of search is actually inaccurate, very limited in scope and has resulted in numerous class action lawsuits against vendors and employers alike. Limiting the scope of the criminal record research to seven years, limits their liability.
As discussed in our prior articles, the background investigation industry has a propensity to promote proprietary database searches called the National Criminal Database that are developed through web scrape technology that siphons publicly available information off of the Internet. Rather than conduct primary source criminal record research through a state agency, such as the State Police, or a central state record repository, vendors rely on a search process that is quick and inexpensive but at the same time is highly inaccurate and limited in scope regardless of the word “National”. The supply chains, sources of records and methods to scrape data can differ and the quality of the criminal record data can vary greatly from one vendor to the next.
Many background vendors are located in California. Unfortunately for employers, vendors operating in this state are prohibited by California law from reporting criminal records beyond seven years regardless of where the applicant lives. The California limitation is not imposed on vendors located in the remaining forty-nine states.
TABB INC. supports second-chance initiatives. A record should not be an automatic bar from employment. We all remember the story of Les Miserables, individuals must not carry a burden for the rest of their lives. The vast majority of offenses are minor in nature, and a criminal record should never automatically block an individual from an employment opportunity. Our website outlines EEOC guidelines to evaluate candidates with a record in a fair and reasonable approach for employers and candidates.
Employers must balance the need to protect the public and fellow employees from harm that could result in a negligent hiring suit. Employers must implement a process that takes into consideration the nature of the offense, length of time that has transpired since it occurred, the relationship of the offense to the job in question, and the applicant as a whole and their value to the employer.
The Fair Credit Reporting Act does not place any restrictions on a vendor’s ability to report a conviction based on the length of time that has transpired. Several states across the country, including California, restrict criminal records to the past seven years. Vendors must abide by these restriction when conducting a criminal search in these states. However, the vast majority of states do not impose any time limits on reporting convictions by a vendor. Visit the following link to determine criminal search limitations in your state- http://www.tabb.net/state-specific-requirements.html
Vendors should not force a criminal search process on their clients. Employers should determine if their criminal check will be limited to seven years or extend beyond in most states and if primary source criminal record checks or inaccurate proprietary “Nation Criminal Database” criminal checks will be conducted. To prevent litigation, employers must determine their comfort level with due diligence standards and understand the type and extent of the criminal research that will be conducted.
TABB only conducts primary source criminal record checks. We do not utilize proprietary databases for our research. At TABB, the client determines the guidelines for the background investigation that will be conducted for their candidates, not the other way around.