Posted on 05/15/2019 at 05:23 AM by Tom Hamilton, SPHR
Many questions surfaced after an employee shot and killed five people in Aurora, Ill. The concern: Why didn't the shooter's past felony conviction come to light during his pre-employment background screen?
Gary Martin fatally tragically shot five of his co-workers and wounded five police officers on Feb. 15 at the Henry Pratt Co., a manufacturing facility. He was convicted in Mississippi in 1995 of aggravated assault for stabbing and beating his girlfriend the year before. But the felony conviction didn't come up during a background check when Martin was hired in 2004, according to Scott Hall, president and CEO of Mueller Water Products Inc, which owns Henry Pratt. That might be perplexing—or even shocking to some—but not to background screening experts. "There's no guarantee because [background screening] is not a perfect science, and you're dealing with an imperfect system," said Jason Morris, an employment-screening consultant in Cleveland. "HR needs to understand that although criminal background checks overall have a very high rate of accuracy, there can be times when records aren't flagged because of the complexity of the search or for other reasons," He added that there is no single records repository containing the updated records from the over 3,000 county courthouses across the United States.
Deep vs. Wide
There are several impediments to getting a complete background check—including the scope of the screen, disorganized or incomplete records, the reliability of the screener, and state laws. When beginning a background screen, the employer first gives instructions for the screening firm on what tools to use, how deep to dig and how far back to search. The most minimal check would be a one-county check made in the new hire's county of residence. That would be showing the least amount of due diligence.
On the other hand, accessing one of several private multistate, multijurisdictional databases containing hundreds of millions of records presents wide—but not deep—search parameters. Experts recommend that employers only use these databases as a supplement to a more-targeted courthouse check. The databases are basically a large data dump, with lots of records and must be combed through by experts who know how to use it. If a record is found, it must be pulled to make sure it's complete, accurate, up-to-date and legal to report.
Checking all the relevant courthouses in the jurisdictions in which the new hire ever lived, worked or went to school would be considered a deep search. But that may take a lot of time and a record could still go undetected. For example, "if Martin had never lived, worked or went to school in Mississippi, and was just arrested and convicted in that state, there's nothing pointing a screening firm to check that jurisdiction out," Morris said.
Another limiting factor is how far back to look. The Fair Credit Reporting Act (FCRA) prescribes you can only go back seven years for an arrest, but for convictions you can go back a lifetime. Many companies have adopted a de facto standard for only going back seven years across the board, so in [the Aurora case], they would've missed it.
Employers, especially multistate employers, have taken up the seven-year standard for consistency because several states restrict reporting information from cases older than seven years. "If a case was last disposed eight years ago in California, for example, you can't touch it," Morris said. Its recommended employers order a broad search going back as far as possible based on where a person lived, worked or studied in the past seven years, and supplement it with a multistate, multijurisdictional database search to increase the chances of finding older, out-of-state convictions. Continuous evaluation, or ongoing screening of employees, can also be informative. Martin was arrested six times after he was hired—for domestic violence, disorderly conduct and criminal damage to property.
The records systems themselves are "far from perfect" and disorganized overall, with some jurisdictions better than others. They're created and maintained by the criminal justice system for criminal justice purposes, not primarily for employment screening. Some states have statewide repositories, while others don't. Not all jurisdictions have digitized their records, and some are notoriously slow to update their cases. Errors in the records like misspelled names can result in clearing people with convictions and flagging people without criminal record.
It's also important to know that background checks can only legally report what's in the public record. Cases that have been expunged or sealed for any reason won't be reported. Whether records can be expunged or sealed is dependent on the rehabilitation laws in each state. Each state is an adventure, with its own set of rules and its own process for archiving records.
Under the EEOC guidelines, depending on the nature of the job, the age of the offense and the seriousness of the crime, [the employer must determine] is the record relevant [to the job]? Employers won't be able to get it right every time, but the point is to show due diligence. At least the employer can show they were aware of the record and made a risk management decision based on the EEOC guidelines that the crime is not related to the job and does not present risk.
Conclusion...You Get What You Pay For: There is no perfect background check out there that will always find everything in an applicant's past. A typical problem with employment screening is relying too much on commercial databases, which can contain incomplete or inaccurate information. Don't skimp on the search, background screens are not that expensive. If you would like to establish or update your screening program, please contact Selection Resources.
About us: Selection Resources is a leading provider of employee selection tools and expertise that helps our clients connect employment decisions to business results. Our advanced assessment testing, background checking and applicant management software help drive a company's financial performance by streamlining hiring processes, improving employee selection and reducing employee turnover. Selection Resources has been part of the Hamilton Group since 1999, and we serve hundreds of clients nationwide from small entrepreneurial organizations to multi-location fortune 500 businesses. If you are interested in trying out our advanced selection assessments please contact us and we'll set you up to try your first one with our compliments.