Exploding the court check myth - checking of job candidates' criminal background - Focus

HR Magazine, Nov, 1998 by Paul W. Barada

When it comes to criminal background checks, there is no easy one-stop shopping.

A common myth in the field of human resources is the belief that there is a magical land where you can get a complete and accurate list of every person who was ever convicted of a crime.

Well, dear reader, it just ain't so.

The marketplace is full of companies that claim they can perform nationwide criminal court checks on any job candidate.

Without actually saying so, they infer that they have the ability to travel to that magical land for prospective employers and conduct criminal court checks quickly, accurately and inexpensively.

The truth is, there is no single nationwide source for records of criminal convictions in existence. Any company suggesting that there is, simply isn't telling the truth.

Can a nationwide criminal court check be done, nevertheless? Technically, the answer is "yes" - assuming you're willing to check every courthouse in every county in all 50 states. Even so, you will have checked only one layer of court records.

In addition to the circuit courts, most larger communities have city or municipal courts. And many states also have a county court system. (Notice that we haven't even mentioned the federal court system yet.)

What's more, even if you had the time (and a suitable credit limit to handle the long-distance phone expenses), this check would cover only criminal convictions. Every county also has jurisdiction over civil actions and keeps separate records for these proceedings.

The harsh reality is that the court systems in the United States are complex and totally independent of one another; they even use a variety of record-keeping methods - from handwritten entries to computer files.

Furthermore, few - if any - of these multilayered court systems share conviction records with any other system.

Central repositories

Some central repositories hold court records, but the value of these repositories is often limited.

For example, some states have repositories that are supposed to contain conviction records from every county in that state. But very few state repositories are accurate or up-to-date.

Why? Typically conviction information comes from the office of the court clerk of the county. In some states, the local law enforcement agencies have to specifically request that conviction records be sent to the state repositories. Even when a request is made, busy clerks may or may not get around to sending the information in a timely manner.

Beyond the state repositories, there is no requirement on any court to report conviction information to any state or federal agency. Of course there is the National Crime Information Center (NCIC) in Washington, D.C., which collects information on arrests and convictions. But the average employer does not have access to NCIC information, and neither do any agencies that claim they can perform nationwide court checks.

What to ask

Given that there is no simple way of performing a national criminal records background check, what will you get if you hire an agency to perform such a check? If you don't ask the right questions, you might end up with a pretty meager check: a phone call to the candidate's current county of residence and a quick conversation with someone in a single local courthouse. It's a lot like trying to kill an elephant with a BB gun.

Does that constitute a nationwide court check? Probably not, unless you think there is a yellow brick road leading to the Emerald City.

To determine the extent of the check you are purchasing, try asking the following questions:

* How many counties will be checked?

* How far back, in terms of years, will the check go?

* Which court systems - circuit, county or municipal - will be covered?

* How many - and which - neighboring counties will be covered? (A candidate could be a saint in his county of residence and have a conviction record a mile long in the next county over, but you'd never know unless someone checked there also.)

* Will the check cover all former counties of residence - and their contiguous counties?

Why do background checks?

The list of questions goes on and on. But perhaps the most important question to ask is, "Why do a criminal court check at all?" There are only two legitimate reasons.

* The nature of the position for which the candidate has applied requires it.

* There is some doubt or suspicion about the candidate's background.

There is a third reason many companies perform court checks: They believe that a court check will demonstrate that some measure of care was exercised in the employment process and that this will protect them from claims of negligent hiring. Conducting a court check, in other words, is a cheap way to cover the company's backside in case a charge of negligent hiring is brought against it.

Companies interested in more than "backside covering" should be doing reference checking to evaluate past job performance as it relates to the requirements of the position to be filled. They should be talking to work-related references who are familiar with the candidate's job performance over time.