Blog Post: Do we need an Innocence Project for employment applicants?

Entre Nax Karage is one of the many wrongfully convicted murder defendants in Texas proven innocent by DNA testing and the Innocence Project. Although he was pardoned by Governor Rick Perry (the actual perpetrator was identified with DNA testing) and his criminal conviction was erased from Dallas County's records, he has continued to pay the price of his wrongful conviction.

According to documents filed with the Dallas County District Court last month, Mr. Karage was hired in April 2008 by security firm Wackenhut and placed as a security guard at Comerica Bank. However, he claims that he was terminated in June 2008 when Wackenhut ran a background check on him through an online criminal records database. According to Mr. Karage's lawsuit, the background check listed Mr. Karage's murder conviction even though the information had been expunged from Dallas County's records.

The federal law that governs employment-related background checks, the Fair Credit Reporting Act, requires that consumer reporting agencies (a term that includes companies that sell background checks to employers) "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."

With regard to criminal records, the FCRA requires that the consumer reporting agency either verify that the record is accurate before reporting it to the employer or provide a copy of the record to the individual at the same time that they provide it to the employer. Mr. Karage’s lawsuit does not indicate whether he received a copy of the record directly from the instant criminal records database. Last year, another criminal database company settled for $20 million a class action lawsuit related to its handling of these requirements.

Recognizing that criminal records databases are full of inaccurate and outdated information, the best practice in the background investigations industry is to verify any information in databases prior to reporting the information to employers. ConcernedCRAs.com, a collaboration of background screening firms, has been formed to bring attention to this and other consumer-protection issues surrounding employment-related background checks.

The criminal records databases are compiled by large data brokers from those jurisdictions that will sell their data in bulk electronic format. This includes the Texas Department of Public Safety’s criminal records repository, which in an Imperative Information Group study last year was found to be missing over one-third of the criminal convictions found in county courthouses around the state.

Because they have no control over the information after it has been sold to private database companies, many jurisdictions refuse to sell their information to database companies. For example, Tarrant County, Texas’ District Clerk, Tom Wilder, convinced the judges in his county that this was the best practice for them to follow.

Criminal records databases are great... but only as indicators of possible records. The information in the databases should always be viewed with a skeptical eye for a variety of reasons:

• As was apparently the case in Mr. Karage’s ordeal, criminal records often change after the database company buys the information from a court. Probation may be revoked, a conviction overturned, or a case expunged from the record. 
• The ability of the databases to correctly associate a criminal record with an employment applicant is often hindered by the limited personal identifiers made available when records are purchased in bulk from courts or repositories. This results in the criminal histories of individuals who happen to share a name with offenders being misreported. 
• Because most jurisdictions do not make their records available in bulk to database companies, the databases miss many records, placing employers at risk of hiring someone with an undisclosed criminal record.

The best practice for screening firms using databases is to verify any records found in the databases before reporting them to an employer.

The best practice for employers is to require their screening partners to verify any records found and to always order hands-on searches of the actual criminal records in each jurisdiction in which an applicant has lived, worked, or attended school.

Mike Coffey is president of Imperative Information Group, a Texas-based background investigations and business due diligence firm dedicated to clients who can't afford a cheap background check.  He can be found at http://www.imperativeinfo.com or you can follow him on Twitter @mrcoffey.