The Washington Post recently published an article called “Growing use of FBI screens raises concerns about accuracy“. The article highlights the fact that many of the FBI’s Criminal Records only list arrests without reporting the disposition of those arrests i.e. did the arrest result in a conviction.
Using arrest records to make an adverse hiring decision puts the employer in violation of current EEOC rules. A conviction is proof beyond a reasonable doubt that the individual committed the violation. Anyone can be arrested for almost anything without an ultimate conviction being made.
The Washington Post article contains a graphic reporting twenty states say that as many as 30 percent of their cases do not include a final ruling. This fact makes it unclear whether someone who was arrested was convicted of the alleged crime.
The Washington Post article quotes Madeline Neighly, staff lawyer at the National Employment Law Project, “FBI’s background checks “might be considered the gold standard, but these records are a mess”.
The National Employment Law Project released a report “Wanted – Accurate FBI Background Checks” that had some key findings:
• 50 percent of the FBI’s records fail to include information on the final disposition of a case
• An estimated 1.8 million workers a year are subject to FBI background checks that include faulty or incomplete information and 600,000 of those workers may be prejudiced in their job search as a result of these incomplete records.
So what is the answer to this dilemma? An employer should confirm the accuracy of information contained in an FBI criminal database report at the county level before taking adverse action. One can retort that this is easy for me to say, right? Well consider the relatively inexpensive cost of a few dollars for doing a criminal conviction. Then consider the hundreds of thousands and in some cases millions of dollars if it is not confirmed and you base the adverse action on inaccurate information. Yes, I think that it is an easy decision to confirm before taking action.