You Should Fear Background Checks Even if You’ve Done Nothing Wrong
Innocent people and employers who hire screening companies are getting ensnared by a digital dragnet.
I’m pretty sure I’m the only person named “Dan Fleshler” in the United States. That’s good news. If my last name were Jones–or Smith, or Harris, or another common moniker—I might have suffered the Kafkaesque fate of Kevin A. Jones.
In 2012, he was offered a job as a doorman and porter in New York City by Halstead Management. Then a report from a large criminal background check company called Sterling Infosystems mixed him up with a man named Kevin M. Jones, who had at least three criminal convictions. Kevin A. Jones had no criminal record, but the job offer was revoked.
Halstead didn’t give him a chance to clear up the confusion before he was told he’d lost the job, according to class-action lawsuits filed last week in federal court against Sterling, Halstead and its sister company, Brown-Harris-Stevens. According to Jones’ lawyers, Sally Friedman and Monica Welby of the Legal Action Center, criminal background screening is rife with error and shoddy treatment of applicants. (Disclosure: I have been an occasional consultant to Legal Action Center on criminal justice issues, including records).
This issue matters not only because innocent people and employers who hire screening companies are getting ensnared by a digital dragnet; it also matters because 65 million Americans have criminal records, and those who want to turn their lives around are hurt by background check mistakes. Maybe you don’t care that employers end up screening out deserving applicants. Maybe you scoff at liberals like me who worry that background screening has a discriminatory impact on people of color. At least you should care that the mistakes cut both ways: employers can end up hiring applicants whose full criminal records are not showing up on background screens.
You can find a litany of common screw-ups in this report by the National Consumer Law Center (NCLC). It’s impossible to quantify the extent of the errors, partly because the industry has no registration requirements and any fly-by-night operation with web access can set up shop. But the NCLC says “tens of millions of workers may pay for these third-party errors with their jobs.” One screening company studied federal corrections databases and found a “41% error rate.”
If you got arrested 30 years ago for selling a little weed but were never charged, or if you went to trial but were never convicted, you still might be tagged with a criminal record. That’s because too many screeners don’t bother to check original court records to verify the status of cases, according to Welby. These screening companies often rely only on bulk databases that aren’t properly updated.
Of course, if job applicants have criminal records, employers need and deserve the right to weigh that history in their hiring decisions. It would be irresponsible for a bus company to ignore someone’s history of convictions for drunken driving. But in the US, common screening practices make it much more difficult for ex-offenders to be evaluated based on their suitability for specific jobs.
This is not just unfair; it leads to bad public policy. Studies have shown unemployment rates of 50% and higher for ex-prisoners nine months to a year after their release, way more than the rest of the country. There are already more than enough obstacles in their path to re-entry; flawed search programs and shoddy, sloppy screening procedures should not add even more barriers.
The rest of the world doesn’t seem to have this problem. “The background screening industry in the United States is a relatively unregulated multibillion-dollar sector that has no comparable foreign counterpart,” according to this report in Workplace Management. “Particularly in the European Union and increasingly across the developing world, a job applicant’s right to privacy trumps an employer’s right to collect information about a potential employee.”
Something must be done to police this Wild West of a system in the US, with, for example, certification requirements for background check companies, as well as reasonable guidelines for screeners and those who hire them. Those steps are endorsed by the industry trade association, the National Association of Professional Background Screeners (NAPBS), which does seem interested in getting things right and has established an accreditation program. But, according to the National Consumer Law Center, “out of the 2,137 members in its online directory, the NAPBS lists only 21 accredited companies…Thus less than one percent undergo voluntary audits by their own trade association and commit themselves to comply with standards that contain many legally mandated elements.”
Like it or not, US businesses need to do more. They need to demand that screening companies look up court records and they need to give people in Kevin A. Jones’ situation advance notice. Friedman puts it well: “Employers and landlords cannot simply hand off to third parties the task of background screening. They can’t turn a blind eye to whether the reports are accurate and the process is fair and legal.”
Kevin A. Jones did find a job, eventually. As reported in the New York Daily News, he filed his lawsuit to “to make sure what happened to him doesn’t happen to anyone else.” But most people in his situation who lost jobs don’t have the lawyers or the time to fight back in court. Unless background screening practices are overhauled around the country, untold numbers of job applicants and businesses will continue to be victimized.