Challenges to criminal background screening outlined in new report

Challenges related to referring to criminal history in background checks for employment purposes are outlined in a new report by the federal consumer financial protection agency released Thursday.

In the report – which looks at employers’ use of background screening reports to evaluate prospective and current employees for employment, promotion, reassignment, or retention – the Consumer Financial Protection Bureau (CFPB) notes a number of challenges that background screening faces.

The report notes that the bureau has general rulemaking authority over most of the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) and the CFPB both enforce the FCRA, which includes provisions related to the inclusion and use of criminal history information.

Regarding the challenges, for example, the report (a CFPB “Market Snapshot”) notes inconsistent systems across jurisdictions for reporting criminal records may make it difficult to access complete records, or records that use consistent terminology and reporting events; that is, different definitions of dismissals.

“There are more than 13,000 state courts of record in the United States, 94 district level and 13 appellate federal courts, and how each jurisdiction keeps records and makes records available to the public vary greatly,” the CFPB report states.

Other challenges cited are:

  • Although the criminal records reporting system has improved recently, there are still disparities in accuracy and reporting of dispositions to state and private data repositories. A 2016 survey of state reporting jurisdictions, the report notes, found that in 50 states and Guam, an average of only 68% of all arrests in state databases have final dispositions reported.
  • Advances in information technology have made it easier to obtain access to criminal records, either directly through digitized court records, through state criminal repositories, or from private databases (third party or internally generated) that collect public criminal records.
  • Courts vary in how they make their digitized systems available (though most states have digital systems).
  • Policies related to privacy and access to court records information vary across jurisdictions.
  • Individuals have limited or no ability to access the reports or the information that will be provided to employers in advance of the application process, potential inaccuracies in the reports received by the employers, and inaccuracies in the underlying criminal history information.

The report also notes that several states have recently issued or expanded criminal record expungement laws, which it says often broaden the type of crimes or situations eligible for expungement.

In addition, the report notes that (as of early 2019) 35 states, the District of Columbia and more than 150 cities and counties had adopted some form of “ban-the-box” or “fair-chance” laws or policies. The laws or policies refer to banning from a list of questions on an employment application whether or not the applicant has been arrested or convicted of a crime.

“The background screening industry has expressed concern about ban-the-box laws,” the report notes, “stating that the current framework of fragmented and varying legislation at the state and local levels is not ideal.’”

Market Snapshot: Background Screening Reports