February 25th, 2013 | Sterling

Do you Have A Record? Gun Ownership v. Employment Background Checks

Employment Background Checks

Over the past couple months, we’ve blogged about the differences between the universal background checks used for gun purchases and those used for employment background checks. As the U.S. Senate closes in on a deal to mandate universal background checks on people who purchase guns, we thought we would highlight another key difference: the use of mental health records.

Mental health background checks are a key component of current federal law regarding gun ownership and one we are sure will be expanded. The Huffington Post’s Josh Horowitz outlines the government’s current requirements below:

Under federal law, an individual is prohibited from buying or possessing firearms if they have been “adjudicated as a mental defective” or “committed to a mental institution.” A person is “adjudicated as a mental defective” if a court — or other entity having legal authority to make adjudications — has made a determination that an individual, as a result of mental illness: 1) Is a danger to himself or to others; 2) Lacks the mental capacity to contract or manage his own affairs; 3) Is found insane by a court in a criminal case, or incompetent to stand trial, or not guilty by reason of lack of mental responsibility pursuant to the Uniform Code of Military Justice. A person is “committed to a mental institution” if that person has been involuntarily committed to a mental institution by a court or other lawful authority. This expressly excludes voluntary commitment. If a person falls under one of these two categories, they are prohibited from purchasing and possessing firearms for life — although federal law now allows states to establish procedures for such individuals to restore their right to purchase or possess firearms. Many states have done so at the behest of the National Rifle Association, with questionable results.

Horowitz goes on to explain how unlikely it is for a record of involuntary commitment to ever make it into the National Instant Criminal Background Check System (NICS) database. Sound familiar? Okay, this bears a strong resemblance to the same principle when it comes to both gun and employment criminal background checks.

So, how does this differ from an employment background check?

For starters (and enders) employers are not permitted to consult any health records as a condition of employment, whether mental or physical. Doing so would surely violate the American with Disabilities Act, myriad state laws and potentially, the Health Insurance Portability and Accountability Act (HIPAA). This is a good thing for consumers in much the same way that discrimination laws prevent employers from making hiring decisions based on gender, race, religion, etc.

There might be some very good reasons why a mentally ill person (or someone with a history of mental illness) could be denied the right to own a gun, but the same logic does not apply to their ability to seek gainful employment.

For more insight into other key differences, check out our post below.

Background Checks

As I’m sure you can imagine, the search term “background check” has skyrocketed on the internet due to the tidal wave of stories about toughening the checks associated with gun ownership. For the last month, my Google alerts are filled with these stories every day even though they have nothing to do with employee background checks (someday Google will just know what I want). Generally, I just ignore them and look for the next thing that peaks my interest. Well, today I came across a Wall Street Journal article that exposed the criminal background checks that are used by gun shops for the Swiss cheese that they are. See below.

Polls show that expanding background checks to cover all gun sales, not just those by licensed dealers, is one of the most popular measures being considered by the White House to curb gun violence. There’s one problem: The system President Barack Obama and many lawmakers hope to expand is full of holes. The National Instant Criminal Background Check System, which federally licensed firearm dealers must use to check the credentials of potential gun buyers, doesn’t include millions of people legally barred from owning guns, researchers and advocates say. Fourteen states list fewer than five people flagged for mental-health issues.

“Many states are still failing to do the bare minimum,” said Mark Glaze, director of Mayors Against Illegal Guns, which studied the matter in a 2011 report. “We know they have hundreds of thousands of records sitting in state agencies.”

If this is about gun ownership databases, why should we care?

I thought this would be a good opportunity to connect the dots a little. For years a number of our politicians, the media and general public have held out that the so-called National Background Check was the holy grail of all criminal background checks. When any major employee violence or breach occurred, people would wonder why the company neglected to conduct a “National Background Check”. The Wall Street Journal article gives us some insight into why a true “National Background Check” is simply a myth.

There is no centralized database of all criminal records. Even the FBI database which many consider the most concise of all is is known to contain only 50-55% of all records. There are a number of reasons for this. First and foremost, these databases were meant for law enforcement, not for determining whether someone was eligible for employment or to own a gun. Secondly, under any circumstance, there is a limitation on the types of records that a state is mandated to provide. Third, it is unclear if the states are even providing that data often enough it at all.

Someday, when the privacy lobby goes away and when local governments become so flush with cash that they can bring all of their court records online perhaps there will be a unified national criminal background check. Until that time, the best practice for employment background screening will always be to conduct local court searches in each county where a person has lived and under each name they have used as an adult. Commercial/State criminal record repositories can and should be used as a complement to that search.

So unfortunately when it comes to gun ownership and gun control, the same principle applies. There is no such thing as an effective “National Background Check”. The politicians are really going to have to roll up their sleeves on this. From the standpoint of demanding the best possible background check, perhaps they should consider the method we use for our clients. Would it be more expensive than an instant check? Yes. Would it take longer? Yes. Would it be more reliable? Absolutely.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.