Delays in county criminal records searches is nothing new. Checking county courthouse records requires accessing each county’s records through the specific procedures that each jurisdiction has in place. Although “clears” or “no records found” can often be obtained the same day, when a “potential hit” (match) occurs, the process is delayed due to the additional research that must occur to eliminate or confirm the “hit.”
However, during the current Covid pandemic, delays have increased significantly in numerous counties around the country. This is because courthouses have been closed at times, and even when they reopened, they generally have new protocols in place that limit access to their court files, impeding the ability of court researchers to examine their county criminal records. This has caused some unusually longer turnaround times (TATs), in some cases stretching into many weeks and even months.
Even before (and eventually after) Covid, delays in county criminal searches occur for a variety of reasons, such as:
- Criminal records generally have no social security number (SSN) attached to them, requiring that they be matched by legal name (including middle name, if any) and date of birth (DOB).
- With 365 or 366 days at most in one year, and about 330 million people in the U.S., it is not uncommon for potential hits to be returned, because the name and DOB matched (John Smith, the most common name in the U.S. has over 47,000 individuals).
- Potential hits are often NOT the person being background checked, but can only be eliminated after examining the actual court records (not simply accessing the county court index which is useful when returning a NO RECORD FOUND, but not sufficient when there is a potential hit, that requires further research. This is when TATs are delayed even more, even though the ultimate result may be clear, i.e., a NO RECORD FOUND.
- The Fair Credit Reporting Act (FCRA – the federal law that imposes significant rules and disclosure requirements both upon the employer and the consumer reporting agency – CRA), mandates that any record uncovered in a criminal database, be verified at the original source, i.e., the county court records.
Criminal databases often contain older records which generally take longer to verify at the county court records level, and sometimes the county records have been purged or cannot be located, which the FCRA then requires the CRA to remove any record that might be displayed in a criminal database search, that cannot be verified.
Companies can assist CRAs to help expedite the completion of county criminal record searches, and also manage expectations from their applicants by considering the implementation of these procedures:
- Consider taking Adverse Action (not hiring, firing, not promoting or demoting) only when criminal convictions have occurred within the last seven years. If your organization has such a policy, inform your CRA so that they can notate your account, thus not wasting time researching records that are older than seven years. This is particularly helpful when records are very old, over 10, 20, 25 years, for example.
Having a policy that only looks back seven years will also help your company satisfy EEOC (Equal Employment Opportunity Commission) guidelines that were promulgated in 2012, as well as various jurisdictions with “ban the box” laws that aim to assist convicted criminals in obtaining employment.
- When making job offers, it is advisable to use language such as, “Your start date is “MMDDYYYY”, but is contingent upon the completion of a satisfactory background check.”
By using such language, if the background check is delayed, the start date gets delayed. If the background check is not satisfactory, the start date is also delayed when the consumer disputes the report, or the start date ultimately never occurs, because the background check is not satisfactory and the consumer does not dispute the report.
- When requesting a background check, always confirm exact legal name, including middle name, if any, and the date of birth of the applicant against their Government ID. Carefully inspect the ID to review that it is valid, and certainly not expired.
- When applicants have a middle name, ensure that the middle name is included when submitting the background check request.
Delays in county criminal searches will still occur at times, even after this Covid national emergency ends. However, by instituting the processes listed above, and seeking the services of a reliable background screening company, that is also a reputable CRA, delays in county criminal searches can be reduced.
Posted by: Rudy Troisi, L.P.I., President and CEO, Reliable Background Screening
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