May 11th, 2022 | Sterling
Criminal Record Checks 101: What Job Candidates Need to Know
Here’s the scenario: you’ve just applied for a job you really want. You’ve already been through a few rounds of interviews and you’re sure you nailed the position. Then HR asks for your social security number and a signature of release for a background check. You panic. What in the world do they want to know about you, what can they discover, and most importantly, what rights do you have to protect yourself against possible bias or procedural errors?
In today’s workplace, background checks are nearly ubiquitous, with criminal screening especially on the rise. A survey by the Society for Human Resource Management (SHRM) found that 92% of surveyed employers conduct employment background screening for their full-time employees, contractors, temps, and even volunteers. From retail to finance to nonprofit and more, industries across the world perform background checks for a variety of reasons, including compliance with housing, licensing, and employment laws and regulations.
From the HR perspective, background checks help employers make the most informed selection, increasing confidence in hiring and uplifting corporate culture to one that embraces authenticity. At a time when workplace violence, fraud, theft, and embezzlement threaten the security of our economy, many employers want to ensure that even a candidate’s social media presence (for example) won’t ultimately damage the company’s trusted brand.
Preparing for a Background Check
While anticipating a background check might feel scary, don’t worry — there are several checks and processes in place to protect you. Before a prospective employer or staffing agency starts your background check, you’ll need to sign a written authorization for the screening; without written consent, the employer or staffing agency may be in violation of the Fair Credit Reporting Act (FCRA), which protects your rights as a consumer.
While every company has its own specific background screening criteria, you’ll likely be asked for your full legal name, aliases, current address, date of birth, and social security number. You might be asked for other information including your driver’s license number, educational background (institutions attended, dates, degrees earned, etc.), and past employment history, along with documents such as passport information or ID cards for history outside of the US If you are a temp or contract worker. Additionally there may be other criteria needed from you as a candidate to perform the background check.
Building the Criminal History Report
Building a complete picture of a candidate’s criminal history requires access to a number of legal sources. As a global leader in background checks, Sterling offers many criminal record check services, including:
- County Court Record Search. County court record searches are available in 3140+ counties in the United States. These searches identify potential criminal history information such as felony convictions, misdemeanor convictions, and pending cases in the jurisdictions provided by the candidate or identified based on Social Security Trace and/or other locator services (such as where they have lived, worked, or attended school).
- State Search. The State Search service searches a state’s repository or state police records for criminal information, and can provide an alternative source for criminal record information in the state.
- Federal Court Search. The federal court search is for crimes that are prosecuted in federal district courts, including convictions and pending cases for charges such as international/interstate drug trafficking, kidnapping, and other federal-level crimes. Sterling can obtain federal records from all district courts based on SSN trace locations in the United States and related territories.
- Global Criminal Search. The Global criminal search is for records in countries and/or territories based on the candidate’s self-disclosed address history, excluding US and Canadian sources, and may include various levels of courts, police records, or other sources of information. Records are reported in accordance with regional and local laws and regulations, and other restrictions that may be imposed by the source. Major coverage areas include Latin America and the Caribbean (LAC), Europe, Middle East and Africa (EMEA), and Asia Pacific (APAC).
- Department of Justice (DOJ) National Sex Offender Public Website (NSOPW) Search. Sterling searches through the DOJ’s NSOPW, which includes registered sex offenders in 49 states, US territories, the District of Columbia, and participating Native American tribes.
- Office of Foreign Asset Control (OFAC). The OFAC list of Specially Designated Nationals and Blocked Persons is commonly referred to as a terrorist watch list. OFAC administers and enforces economic sanctions programs primarily against countries and groups of individuals, such as terrorists and narcotics traffickers. The sanctions can be comprehensive or selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national security goals. This search spans multiple geographies with varying regulations and regional considerations, so the results are subject to availability and applicable reporting limitations.
What is “Ban the Box” and What Are Your Rights?
At the time of this writing, 37 states and 150 cities have presently enacted the “Ban the Box” legislation, which prohibits employers from inquiring about prior criminal convictions until later in the hiring process. Essentially, these laws remove the “checkbox” in a typical employment application, thereby allowing applicants with criminal records to defer initial prejudice in the early stages of the application process. Also known as the “Fair Chance” or “Fair Opportunity” laws, this legislation as of 2022 has been extended to private employment in 15 states and 22 cities.
If a business makes the decision not to hire a candidate based on what is found in a background screening report, it is required by law to initiate the two-step adverse action process. Neglecting this process will expose an organization to lengthy and costly legal action. Companies must always give you, the candidate, adequate time to respond and dispute the decision. They must also wait a reasonable amount of time (at least five days) between notices, or longer if needed. If you are working in an organization which needs guidance on the do’s and don’ts of adverse action, download our adverse action checklist here.
Changing Hiring Trends for Those With Criminal Records
If you have a criminal background and are seeking work, don’t despair. Trends are changing. According to a survey conducted by a leading business organization dedicated to getting people back to work after the two-year pandemic slowdown, nearly two-thirds of HR professionals said they would be willing to work with individuals with criminal records (up from 49% in 2018). In fact, two out of three HR professionals said their organization has hired individuals with criminal records. Nearly half of business leaders said that their organization should offer training or guidance to workers with criminal records to facilitate their transition.
What hasn’t changed is an employer’s expectation that a submitted application should be fully truthful. Many employers consider lying on a resume to be a serious breach of trust, especially if your signature has attested that all facts provided are true. Even if you do get the job, you may be subjected to being dismissed later if the embellishment is discovered. Furthermore, many businesses conduct annual background searches, Given the present state of technology and the desire of businesses to learn as much as possible about prospective or current employees beyond their resume, it is not worth the effort to inflate your resume.
Background screening has become an essential part of making a quality hiring decision. But just because you have a conviction doesn’t mean you should be disqualified from the job. At the same time, knowing your rights and how local, state, and federal jurisdictions protect you can help you make the right decisions about disclosure. The best approach is to present yourself truthfully, both in the workplace and everywhere else you go.
If you are a job candidate completing a Sterling background check, click here for important FAQs.
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.