There are a variety of background checks to find out about someones past. One type of background check that allows for a company or individual to find out about a person’s history is by using a criminal background
What is a Criminal Background Check?
A criminal background check is a background check that looks at an individual’s past illegal activities. Unlike a general background check, it will not verify a person’s work or educational history. There are multiple types of criminal background checks. County criminal background checks are for a specific county; while, state criminal background checks are for the entire state. It is important to note that some states do not have every county files on record.
However, the state criminal background check does contain records of all crimes committed at a state level, (those crimes that are illegal in all counties of that particular state). While there is no national-level database for the private sector to use, 46 states have an electronic database that is available online. For the four states (Wyoming, South Dakota, Massachusetts, and Delaware), that does not contain an electronic database online; the records are available for search in each county.
The information in criminal background checks come from a variety of places. County checks come from courthouse records; while, state records come from courthouse records, the sex offender list, Department of Corrections, Department of Public Safety, and the state Administrative Office of Courts. The national records take information from county and state records, along with, America’s Most Wanted, US Marshals office, US Secret Service, DEA, ATF, the FBI’s Most Wanted, Federal Office of Foreign Asset Control/Terrorist Database (OFAC), Homeland Security, and the US Treasury Office of Foreign Assets.
What Information Does a Criminal Background Check Contain?
An employer receives certain information after running a criminal background check. After viewing it, he/she can tell if a candidate has any current or pending charges against him in court records, such as dockets, complaints, proceedings, affidavits, and dispositions. Also on the criminal background check information, the future employer receives, information on if the candidate has warrants for their arrest. The employer will also receive the individual’s incarceration records. These contain information related to convictions, felonies, and misdemeanor. The employer will also find out if the candidate is on the sex offenders list. It is important to note that all criminal background checks must follow FCRA rules and regulation.
According to the FCRA records of civil suits and arrest cannot be reported on a criminal background check after seven years. However, convictions stay on the candidate’s record indefinitely; except for the state of California. The state of California does not allow for potential employers (or current employers) to receive information about a candidate’s convictions if it occurred seven years prior.
How to Perform Criminal Background Screening on a Candidate?
The first thing a potential employer must do is inform the candidate that they will be running a background check on them. The company must give them disclosure that states that the company is doing this; however, some states may require a state disclosure form. Then the company must give the candidate a consent form, so the candidate can agree to have the criminal background check done. It is vital for the company to receive a consent form from the candidate and give them the disclosure forms. Otherwise, the company faces legal actions from the candidate. It is also crucial for companies to know the state law before the company has a criminal background check performed.
Some states will hinder the amount of information a company can ask for and use in a criminal background check. Another important note is that some states and cities have ban-the-box legislation; which, means a potential employer legally cannot as about a candidate’s criminal past until the interview, these states include Hawaii, Massachusetts, Rhode Island, and Minnesota; while, cities include Seattle, Philadelphia, Newark, and Buffalo. Other states may consist of ban-the-box legislation, so it is essential for companies to keep up-to-date on rules and regulations in their state. The next thing for an employer to do, when they use criminal background checks, is to find a company or agency accredited by the Consumer Reporting Agency (CRA). Next, the company will have the agency do the check.
National Instant Criminal Background Check System (NICS)
The National Instant Criminal Background Check System (NICS) is another system that is used to check a candidate’s criminal record. The Brady Handgun Violence Prevention Act mandated NICS in 1993 and launched in 1998 by the FBI. The NICS uses the Federal Firearm Licensees (FFLs) to see if a potential gun buyer is eligible. A licensed dealer can either call or e-mail NICS. The dealer will get a response almost immediately on whether or not the potential buyer would violate Section 922 g or n of Title 18 of US Code or state law.
Not all states run their NICS the same way. In some states, the state has a point of contact (POC), who will conduct the NICS checks, and other states do not. In states that have a POC, the FFL will contact the POC, and they will perform the NICS check. Also, some state will be POC for handguns but not for long guns. In this case, the FFL will contact the POC to conduct the NICS for handguns. If the potential buyer is buying a long gun, the FFL will contact the NCCC (NICS Contracted Call Center), to have them conduct the check through the FBI. In states that do not use a POC for any form of gun checks; the FFL will contact the NCCC to perform all checks (of the checks done in these states is checked by the FBI).
Are Background Checks Free?
Many sites allow an individual to search criminal background checks for free; however, if an individual uses these sites, they may not receive accurate information. Also, by using free sites to run a criminal background check, the individual needs to make sure they are using a legitimate website. Moreover, these sites may not be following the FCRA rules and regulations; which means, if an individual or company use the information found on these sites, they could face legal ramifications. It is safer for a company or individual to use a company that charges a fee and certified through the CRA. By using an agency accredited through the CRA, the company or individual has less of a chance to face any legal ramifications for the information used.
How Can Criminal History Cost You a Job?
The answer is not as easy as a simple yes or no. One thing that employers’ take into consideration when they are thinking of hiring an individual with a criminal background is how does the conviction, impact the job. There is no federal law that protects an individual with a criminal past from not being hired for a particular position. However, under some circumstances, the US Equal Employment Opportunity Commission (EEOC) has determined that not hiring someone based on their criminal past can be a form of discrimination.
Some states and jurisdictions have different laws and rules, so it is vital to know the laws of the state and jurisdiction. As previously stated, some states and cities have “ban-the-box” laws, where employers are not allowed to ask if an individual has a criminal past until the individual is in the interview. There are also incentives to hire individuals with a criminal background. The federal government, along with some state and city governments, will offer tax incentives to hire individuals with criminal histories, such as The Work Opportunity Tax Credit.
Individuals with a criminal background, do have rights if they get fired or not hired for a job. An individual has the right to know the reason as to what got them fired, a copy of that reason, and the agency that provided the criminal background check. Also, if an individual has a criminal record that is over seven years old, they may be able to contact an attorney to help them expunge their record.
Running a criminal background check on an individual that the company is interested in hiring is an excellent idea. However, the company needs to use a CRA accredited agency and consider certain precautions before dismissing someone because of what is on their criminal background check. The company could face legal action if they do not follow the rules and regulations of the FCRA and EEOC. It is also crucial for the individual with the criminal history to know their legal rights.