Will A Criminal Background Check Keep You Out of Court?

With the increase in negligent hiring lawsuits, criminal record checks are becoming more important than ever.

Posted by Joe Gerard in Employment Law, Human Resources on April 29th, 2011

With the increase in negligent hiring lawsuits, criminal record checks are becoming more important than ever. A bad hiring decision can affect a company’s budget and reputation, should an employee’s actions hurt someone. Employers can no longer rely on their gut feel about a person as their justification to hire.

In addition, some fields require that criminal background checks be carried out. For example, laws in many US states require criminal background checks for anyone who works with children, the elderly or the disabled, including volunteers and scout leaders. Employers are scrutinizing job candidates more readily as a result of increases in acts of terrorism and fraud reported in the news.

A webinar, “Employment Background Checks Demystified,” conducted by Kevin Connell, CEO of AccuScreen and Mike Sankey, CEO, RB Publications, Inc. addresses the intricacies of performing criminal background checks in the US and the importance of getting accurate information on candidates to minimize your legal exposure.

The Criminal Records Maze

In the webinar, Sankey explains:

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“Criminal records are not all created equal. If employers are not knowledgeable they can jeopardize their hiring practices. Also they can be misled by deceiving marketing practices and actually have a false sense of protection. So employers should know and understand the options available to them.”

He refers to the “maze in the world of criminal records” as problematic in doing searches and emphasizes the importance of having a consistent policy for checking criminal records as part of a company’s best practices.

The webinar presents six reasons why criminal records are not created equal:

  1. Record creation points – multiple creation points can create multiple types of records
  2. Record access points – where you access records can make a difference in what you see in the record
  3. Identifiers used/shown – identifiers used to access and identifiers shown on the record can be different
  4. Restrictions imposed – there can be access restrictions imposed by government agencies and use restrictions can be imposed on both the record requester and the record user
  5. Technology or the lack thereof – plays an important role
  6. False advertising – can be misleading, deceiving and can cause legal issues

With this in mind, you can see the difficulties of online searches and the limitations of companies that offer quick online record checks for a song. This is fine if you’re looking to find your Aunt Edith or looking to check on a neighbour, Sankey says, but if you’re looking at hiring someone who is going to be representing you to the public, you want to make sure you’re hiring this person legally and you’re not going to get sued

Red Flags

There are lots of scams and ineffective search companies on the web. If you find a site using any of these marketing schemes, it’s best to avoid them.

  1. Charging membership fees for unlimited access to national background data
  2. Showing endorsement by a phony or suspect trade association
  3. Promoting non-FCRA-compliant employment screening (or non-state-restriction-compliant screening)
  4. Not explaining the limitations of databases. (Some databases only show certain types of records and if the company is legitimate they should be letting customers know this).

Cover Your Behind

The bottom line: if it looks too good to be true, it probably is. Stay away from people who cut corners and ensure you use a thorough and reputable service for your background criminal record checks to keep you and your company out of the courthouse.


Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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