Recently we were contacted by an individual who had undergone an FBI record search. This individual had some arrests but asserted there were no dispositions. That happens frequently. Anyone can be arrested for almost anything. And police are very good at obtaining fingerprints and reporting them into the FBI database, thus creating the FBI record. However, there is no ultimate disposition recorded i.e. the result of a criminal charge filed by the local District Attorney office.
What does this mean for you as an employer receiving results from the FBI database of fingerprint records? What you are looking at, when you review FBI records, is an instance of an arrest. The EEOC advises that arrest records can be used but requires a high degree of due diligence. Part of that due diligence would make it incumbent upon you to confirm the arrest records at the jurisdictional level i.e. the county courthouse.
What can an individual do to remedy the situation? For a fee, the FBI can provide individuals with an Identity History Summary—often referred to as a criminal history record or a “rap sheet”—listing certain information taken from fingerprint submissions kept by the FBI and related to arrests and, in some instances, federal employment, naturalization, or military service.
If the fingerprint submissions are related to an arrest, the Identity History Summary includes the name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known. All arrest information included in an Identity History Summary is obtained from fingerprint submissions, disposition reports, and other information submitted by authorized criminal justice agencies.
The U.S. Department of Justice Order 556-73, also known as Departmental Order, establishes rules and regulations for you to obtain a copy of your Identity History Summary for review or proof that one does not exist.
Some of these previous blog posts stress the importance of an employer confirming information in a report returned from a fingerprint search.