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Criminal Record Checks Are The Most Important Feature of a Background Check
From the standpoint of liability and cost to the company, the feature of a pre-employment background check that has been proven to be the most likely to be performed incorrectly and lead to negative consequences is the criminal record search.
Here's why:
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High Stakes of Errors: Mistakes in criminal record checks, whether they are false positives (incorrectly reporting a criminal history) or false negatives (missing a relevant criminal history), carry significant risks:
- Negligent Hiring Liability: If an employer fails to adequately vet an employee's criminal history and that employee subsequently commits a crime that harms someone in the workplace or related to their job, the employer can be held liable for negligent hiring. These lawsuits can result in substantial settlements and legal fees, often in the hundreds of thousands to millions of dollars.
- Discrimination Lawsuits: Incorrectly flagging a criminal record or applying overly broad exclusions based on criminal history can lead to discrimination lawsuits, particularly if the policies have a disparate impact on protected classes. The EEOC provides specific guidance on the use of criminal history in employment decisions to avoid discrimination.
- Reputational Damage: Hiring an employee with a history of serious offenses that becomes public knowledge can severely damage the company's reputation and erode trust with customers and stakeholders.
- Workplace Safety Incidents: Failing to identify a potentially dangerous individual through an inadequate criminal record check can lead to incidents of violence, theft, or harassment in the workplace, resulting in direct costs related to the incident, decreased productivity, and potential legal action.
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Complexity and Data Issues: Criminal record searches involve navigating complex legal jurisdictions, varying record-keeping systems, and potential for errors in databases. Common issues include:
- Mistaken Identity: Similar names or birthdates can lead to the criminal records of one person being incorrectly associated with another.
- Inaccurate or Outdated Information: Records may not be updated to reflect expungements, dismissals, or changes in status.
- Incomplete Searches: Failing to search relevant jurisdictions (federal, state, county) can result in missing critical information.
- Misinterpretation of Records: Understanding the nuances of legal terminology and the severity of past offenses is crucial for proper evaluation.
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Legal Compliance Requirements: The Fair Credit Reporting Act (FCRA) and various state and local laws impose strict requirements on how criminal background checks are conducted, including disclosure, consent, adverse action procedures, and the permissible use of criminal history information. Errors in these processes can lead to legal violations and penalties.
While errors in other background check features like education or employment verification can lead to costs associated with bad hires and potential reputational damage, the direct liability and potential for catastrophic costs (including harm to individuals) are generally highest when criminal record checks are performed incorrectly or inadequately. The consequences of a violent act or significant financial crime committed by an employee whose history was missed or mishandled during the background check process far outweigh the typical costs associated with an employee who misrepresented their qualifications.
Therefore, while all aspects of a background check should be performed accurately, the criminal record search is arguably the most critical from a liability and potential cost perspective due to the serious risks associated with errors or omissions.
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