Lawmakers Say Employment Background Checks In Need Of Revisions

WASHINGTON — Accurate and quickly processed arrest records are becoming a bigger priority as public sector employers perform more criminal background checks on job applicants, lawmakers told a House subcommittee hearing Thursday.

Unaccounted-for disparities in records used for background checks, such as a failure to include dismissed arrest charges, could cost some potential employees their jobs unless the system is revised, Maurice Emsellem of the National Employment Law Project in Calif., told the hearing.

"About 40 percent of employers won't hire once they know someone has a criminal record," Emsellem noted.

FBI data used for background checks by public service sector employers, such as nursing home staff and educators, does not always include the outcome of criminal arrest cases. When this happens after a past arrest is flagged from a fingerprint scan, the FBI or state police department must then conduct follow-up research, Paul Bresson, a bureau spokesman, said in a phone interview.

"We prefer to see a follow-up [on arrests] a year later to determine the ultimate outcome, but we don't have all of those [dispositions]," Bresson said.

The FBI has issued a proposed regulation to include non-serious offenses in criminal history reports, such as shoplifting. But Rep. Robert Scott (D-Va.), the Homeland Security subcommittee chairman, said including such offenses would create a racial disparity among prospective employees.

"Non-serious criminal records should not be made available," Scott said. "They would have a negative impact on racial minorities who are more likely to have these arrest records."

Though access to FBI data enables employers to make a knowledgeable employment assessment, the committee questioned the amount of access employers should have to such information, specifically if private employers should be required to perform federal background checks.

If gaps in FBI records are filled and updated, David Campbell, senior counsel in the Justice Department's Office of Legal Policy, said the information would enable private employers to provide more accurate information for employment screenings. Private employers do not have access to FBI criminal records for background checks under the current law.

"This approach frequently leaves those without access authority [to FBI records] with what they consider less than adequate information for efficient and accurate criminal history checks," Campbell said.

Under the Intelligence Reform and Terrorism Prevention Act of 2004, public employers are required to verify the identity of prospective employees, though Scott said several states do not comply with federal law.

"The state [background check] process is inconsistent," Scott said. "Some states do not perform background checks even when they are required."

In Georgia, state law requires individuals employed by the school system to complete a federal background check before they are employed, said John Grant, chief investigator of the Professional Standards Commission for educators.

If inaccuracies are found during a person's background check, he or she is given the chance to prove that inaccuracy to the hiring agency, Grant said.

"Bad information results in bad consequences," he said. "But most people keep a copy of the disposition of their arrest when their case is dismissed, which can be shown to potential employers if needed."

A 2006 attorney general's report found that more federal funds are also needed to improve the accuracy of the national criminal history records system, which has been funded at amounts lower than those proposed in the president's budget.