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April 26 2019

What Employers Need to Know About Instant Clears “garbage in, garbage out”

From across the pond, our colleague, and life-long expert on Background Screening, Lester Rosen, shares his thoughts on a new twist the US background screening industry is currently experimenting with – “instant clears”. This is an eye-opening article important to anyone involved in obtaining criminal records from the USA.

Attorney at Law, Educator, Presenter, Author and Expert Witness on Background Screening and Legal Compliance and CEO at Employment Screening Resources.
By Lester Rosen 

One of the interesting aspects of the background screening industry is that no matter how long you have been involved, new twists and turns pop on a regular basis.  The screening industry continues to find new and interesting ways to innovate with the ever-present goal of empowering employers to be able to more quickly make informed hiring decisions.

One of the new and innovative twists is one designed to more quickly deliver a criminal result when the search is clear – often referred to as an “instant clear.”  The idea is great in theory: a screening firm searches a database, online court system, or other source of instant information, and if a name is absent, the employer should be able to conclude that there is no criminal record to find.  The search may include, for example, accessing a court’s online system remotely, or some form of screen scraping from a county court computer.  Of course, if an applicant fails an instant clear, the screening firm needs to obtain the underlying information about the potential criminal record to ensure that it is reportable, belongs to the applicant, and that the record is complete and up to date to date as required by law.  However, as the old saying goes, “the devil is in the details.”  The potential problem with an instant clear is the quality of the underlying data.  If the data being used is not complete and up to date, there is the possibility that employers could base critical decisions on inferior information.  The term “garbage in, garbage out” can apply and using defective information comes with serious risk to the company.   

If we look at California as a case study, the state has 58 counties.  Since California does not have a central statewide criminal repository of all criminal records available to private employers, the information must come primarily from each individual county.  There is some limited statewide information such as registered sex offenders, but the bulk of criminal information is maintained by the courts in each of the 58 counties. So, what is the issue?  In California, county court is its own fiefdom that keeps, maintains, and controls access to criminal records in accordance with its own unique policies, capabilities, and practices. There is simply no statewide process, computer system, or standardized procedure every county follows.  They use the Frank Sinatra approach – they do it their way.

The result is a patchwork of systems that vary by county.  Although the data from some online county systems is reliable and up to date, many counties are not and some even have disclaimers on their online system that warn users that the information obtained online is not the same as the information they would get from an in-person search at the courthouse.  Some online court systems warn not only that the information is not the same, but also that it is not suitable or lawful to be used for certain applications, including a background check for employment purposes.  In other words, for an instant county search to be considered reliable, it should be the functional equivalent of a search conducted physically at the courthouse.  If the information is incomplete or stale, then the argument can be made that a so-called “instant clear” can lead to both false negatives and false positives.  A “false negative” is where a person is “cleared” who, in fact, has a criminal record.  A “false positive” is where a person is thought to have a criminal record, but upon further examination, it is either not a match to the subject being checked or the record is no longer reportable, such as a record that has been expunged. 

A large number of online county sources in our case study state of California arguably do not meet minimum standards to be acceptable for use in a hiring decision.  Without naming the exact counties or going into too much detail, here are some of the issues currently being reported in California counties by public record retrieval experts that could potentially impact the notion of using databases or instant electronic connections to a county court system to provide an “instant clear.”  
  1. The criminal online results are not the same as the public access terminal results.  There can be missing cases, plus a delay of several days before new cases are entered (it varies based on clerk workload).
  2. Misdemeanors are not shown online.
  3. Cases available online prior to a certain date are not included, which impacts search accuracy and program consistency.
  4. The online system is new and has issues with missing information.
  5. Data is only updated every 3 months.
  6. Criminal cases are not available online. 
  7. The date range online is limited and any cases prior to 10/19/2015 require a court visit to view.
  8. There is no indication as to how far back the information goes or how often it is updated – disclaimer on site says the information is subject to errors or omissions.   
  9. Older felonies (older than 10 years or so) are not always on the site but are available on the court terminals in person.
  10. Uncertainty over how far online system goes back or how often it is updated.
  11. Information for cases filed prior to 10/24/2014 is not accessible through the online portal.
  12. Only limited information is provided, or some cases could not be converted to current format and are therefore missing.
  13. No hyphenated or two-part last names can be searched on the portal, and identifiers are not included in results.
  14. No indication as to whether or not felony and misdemeanor cases are included.
While instant clears sound good in theory, with the steady increase in class action and single party lawsuits against employers and background screening firms, in addition to the risk a failed criminal check represents, their use should be a red flag for employers. 

The bottom-line is that unless each county has been thoroughly vetted and found to meet minimum quality, scope, and timeframe standards, it ultimately can put employers at risk.   An employer who doesn’t ask the right questions about the source of their criminal searches may be relying on information that is incomplete, outdated, or didn’t even search the relevant records.  A big danger for employers is getting a false sense of security, where “red flags” may actually exist.  The good news for employers is that as time goes by, county court systems and technology will likely continue to improve, and become more accurate as new data is entered. It is probably just a matter of time before an “instant clear” becomes a more powerful and dependable tool.  In the meantime, employers need to ask the right questions about the effectiveness and accuracy of an “instant clear” search in order to make a reasonable and informed decision on just how much reliance should be placed on it.