The Growing Scope of Background Checks


In April 2001, Kroll told The Financial Times that preemployment screening "will be the equivalent of what drug testing was in the 1980s." [7] Kroll's assessment and the undeniable rising popularity of detailed background checks both stem from the fact that from an employer's perspective, prevention is nine-tenths of the battle. As a practical matter, it is far less costly to do a thorough or even overly thorough background check on a potential employee than to deal later with the consequences of a lewd, dishonest, or dangerous worker.

In addition, employers are increasingly aware that a failure to conduct a thorough background check may be introduced as evidence of negligence if an employee injures someone on the job. The majority of states, for instance, now recognize the tort of "negligent hiring" under which an employer can be held liable for hiring someone with violent or criminal tendencies who should have been uncovered through a reasonable investigation. Even worse, from a workplace privacy perspective, there is a slow but steady trend in support of the tort of "negligent retention," in which an employer can be found liable for not immediately terminating an employee who may pose a risk to coworkers or the public.

As a result, employers are asking their human resource departments and private investigators to go after increasingly personal information on prospective employees in an effort to weed out potential sources of liability before they're hired. Here's a sampling of the information that's routinely sought by employers.

Criminal Record Checks and Fingerprints

In theory, we believe in rehabilitation in this country. If you've committed a crime but have paid restitution or successfully served a prison sentence, then you've "paid your debt to society."

The reality, of course, is entirely different. A criminal record is a permanent black mark, a legal stigma to be dragged around like Marley's chains. Many states, for instance, require fingerprints and criminal record checks for applicants whose jobs deal with children or the elderly, and virtually all states now have a version of Megan's Law, which requires sex offenders to register their current location with the state so that the information can be provided to communities and neighborhoods.

Roughly a third of all employers will check to see whether you have a criminal record when you apply for a job. While the current cost of doing a reasonably thorough background check can run from $100 to $200, the cost of doing a basic criminal record check is often much lower, in the $20 to $25 range. Typically, an investigator will check the criminal record files of the county in which you currently reside, as well as those in which you recently lived. An employer is primarily interested in knowing if you've committed any crimes that involve violence (rape, aggravated assault, murder, theft, or drugs).

The technology for doing such checks efficiently still has limited capabilities. At the moment, there is no single, easily searchable database of state criminal records that is readily accessible by employers or private investigators. The National Crime Information Center (NCIC) maintains records of most felonies and some misdemeanors, but its use is limited to law enforcement personnel. [8]

Thanks to a $640 million upgrade, the FBI recently replaced the original NCIC with the NCIC 2000. In addition to containing the original database of wanted lists, rap sheets, names of missing people, and lists of stolen items, the new, far faster database also integrates both fingerprint records and mug shots. With the appropriate hardware and wireless connection, a police officer conducting a routine traffic stop can use a small reader to send a suspect's index fingerprint directly to the NCIC 2000, which can report back in minutes whether the fingerprint matches the print of a known fugitive.

Two weeks after the NCIC 2000 was launched, the Federal Bureau of Investigation also opened a new computerized database of fingerprints at its Criminal Justice Information Services facility in Clarksburg, West Virginia. [9] Known as the Integrated Automated Fingerprint Identification System (IAFIS), the system makes it possible for the FBI to search its collection of 39 million fingerprint records in just two hours. Before the installation of the IAFIS, it took the FBI up to twenty days to determine if a set of crime scene fingerprints matched another set in its records.

Lacking the better part of a billion dollars to implement similarly powerful systems, states are taking a much longer time to computerize their criminal records. However, the trends are unmistakable: Computerization of court records is steadily expanding, and as it does so, the time and cost required to do a criminal record check will continue to fall. Inevitably, the percentage of businesses that do criminal record checks will correspondingly rise.

Knowing that your prospective employer will do a criminal background check on you might make you uncomfortable, but it's hard to argue that it constitutes an invasion of privacy. In fact, most courts agree with the Massachusetts Supreme Judicial Court, which stated that "a convicted person has a low expectation of privacy in his identity by reason of the taking and storing of fingerprints, photographs, and other criminal records...." [10]

While searching criminal records may not be an invasion of privacy, the potential impact of a positive response does raise an important public policy question. The Equal Employment Opportunity Commission, which is charged with enforcing the 1964 Civil Rights Act, has stated that job applicants cannot be denied employment simply because they have a criminal record, but it has also ruled that a business may take a person's criminal record into consideration and may refuse to hire if it has a "sound business reason" for doing so. Not surprisingly, businesses are typically given a fair degree of latitude in deciding what is a "sound business reason" for not hiring someone, and the steady rise in negligent hiring verdicts makes them increasingly cautious. The dilemma, of course, is that if a large enough number of employers take the position that it's better not to hire people with a criminal record, the process of reentering society will get steadily more difficult for hundreds of thousands of people.

Motor Vehicle Records

Not surprisingly, state motor vehicle databases are rapidly becoming one of the most popular sources of information about potential employees. The amount of information contained in those databases is enormous: The Federal Highway Administration reported that in 2000, for instance, there were 190,625,023 licensed drivers in the United States. With varying degrees of accuracy, your state knows where you live, how tall you are, what color your eyes are, whether you need corrective lenses or other types of visual assistance, and how old you are. In addition, your driver's license contains a unique identifier (often your Social Security number) that is linked to an ever-growing record of your behavior behind the wheel.

In addition, as of 2001, there were roughly 133,600,000 registered automobiles on the road today, along with 87,000,000 trucks. Every time a vehicle is bought and sold, registered with the state, destroyed in an accident, or stolen, another piece of data is entered in a state motor vehicle database.

The value of these databases is obvious to employers looking to hire people as drivers: If you're in the habit of picking up speeding tickets or you have a suspended license, then you're probably not the best candidate for a driving job. With potential liability levels so high, employers are particularly concerned about arrests and convictions for driving under the influence (DUI), along with license suspensions or revocations.

A check of your driving record can reveal far more about you than simply your ability to obey traffic laws. Security specialists point out that a mismatch between the address you put on your job application and the address on file with the state motor vehicle department should be a warning sign for the employer. For instance, if your license was issued in a different state, an employer might wonder whether you applied for a new license in an effort to hide a bad driving record.

Of course, most jobs don't require driving. Nonetheless, a prospective employer may still be interested in your driving record because of what the employer thinks that it says about you as a person. An employer might conclude, for instance, that a DUI conviction on your driving record is an indication of alcohol abuse that could lead to other problems in the workplace. Even if your alcohol use has not risen to the level of addiction, an employer may simply conclude that your lifestyle is simply too dangerous or irresponsible for the company.

The absence of a driving record is almost as troubling to an employer as a bad one. Some people, particularly those who live in urban areas, don't drive, but employers have learned that some applicants have no license because they want to hide a bad driving record.

Since state driving records are public, there's no inherent basis for objecting to a potential employer's examination of your driving record. But obviously, this begins to raise some potentially troublesome issues. Is it fair for an employer to conclude that because you were once arrested for DUI, you're not suitable for a data entry position? How direct does the connection have to be between an earlier infraction and the responsibilities of the job for which you're applying? Could an employer decide that he or she is only going to hire teetotalers? Where should the line be drawn between acceptable criteria (e.g., no convicted child molesters working with children) and unacceptable discrimination (e.g., men only)? The battle between employers and employees over these types of questions is just beginning to be waged.

Civil Litigation Records and Worker's Compensation Claims

Civil court records are also becoming a particularly fruitful source of information. If you've been involved in legal proceedings of any description, there is a potential treasure trove of information available to the determined employer or investigator. For instance, a search of the court records in your local jurisdiction will reveal if you have child support obligations, liens on your property, restraining orders for domestic problems, claims for worker's compensation, and a variety of other types of information.

Most of the documents in a court case are public records, which means that they're open to inspection by anyone who wants to take the time to view them. At the very least, the court will have on file the pleadings of the case—the complaint, the answer, and assorted motions that were filed during the course of the case—along with a copy of the verdict and any questions answered by a jury. The court may also have on file copies of depositions taken during the case, during which you may have been required to answer some highly personal questions. Similarly, trial transcripts are also sometimes available, which can be highly informative reading depending on the nature of the case and the answers that you gave under oath.

Over the last several years, the federal court system has grown steadily more computerized, making it relatively easy for investigators to do a national search for cases in which you may have been involved, ranging from criminal proceedings to bankruptcy. State court records, however, are still generally more difficult to search. In order to do an effective state court record search, an investigator must physically visit all of the courthouses where you may have been sued or filed suit against someone else, and actually check the indices that are maintained by each court clerk, and then go through the paperwork of any cases in which you were involved.

The majority of states forbid local governments (i.e., counties, cities, and towns) from selling public information at a profit, which means that court systems have little incentive to put their older records into a searchable online database. The cost of doing so is high, and while money has been budgeted in most jurisdictions to make current court records more accessible, the focus is generally on current information rather than historical records.

To help fill the perceived need for better searching capability of state court records and older municipal records, a new industry has developed to collect and compile local information into commercial databases. Most of these services are available on the World Wide Web for a relatively nominal fee. However, as courts receive more requests from businesses for copies of their records, they've begun to look at the potential privacy implications. Specifically, courts are wrestling with the question of whether different standards should apply for paper and electronic records. Courts are also very concerned about the highly personal information that can wind up in court files, information that may or may not have been relevant to the proceedings. Here too, technology and economic opportunity are outpacing the ability of the courts around the country to formulate a consistent privacy policy.

Credit Reports

As we'll see in Chapter 4, credit card companies and credit reporting bureaus have been at the forefront of the computer revolution for the past half century. They have had and continue to have an enormous economic incentive to develop and maintain extremely fast networks and databases of personal information on virtually every consumer in the United States. As a result, credit reports have become among the most sought-after and easily obtained sources of personal information. That makes sense when you're filing an application for a mortgage or for a new car loan, but it makes less intrinsic sense when you're applying for a job, particularly one that does not involve the handling of money.

For a modest subscription fee to the right commercial database, an investigator can check the credit report header for a variety of basic information. For instance, if an employer wants more information about an applicant named Charles Franklin, an investigator can retrieve a listing of all of the Charles Franklins in the country or in a particular region, and the header of each credit report will show their full names, former and current addresses, Social Security numbers, and birthdates.

Under the provisions of the Fair Credit Reporting Act, an investigator should not be able to retrieve the full credit report for any of the Franklins. However, many prospective employers will require you to sign a form giving them permission to retrieve full credit reports from each of the credit bureaus. You can refuse to sign the authorization form, but your prospective employer can also refuse to consider your application. Currently, there is no legal protection for someone who is denied a job because they refused to permit access to their credit report.

Health Records

If people get twitchy about a prospective employer reviewing their driving records and credit reports, they get positively apoplectic at the idea of their medical records being a routine part of a job application.

In general, it's not quite as bad as you might think, at least during the application process. There are no national or state databases of medical records, and most physicians, hospitals, and even health insurance companies have strict rules that prohibit the unauthorized release of medical information. That's not to say, of course, that the occasional records clerk or nurse's aide hasn't dined quite nicely on an investigator's dime, but such security breaches are more the exception than the rule.

Moreover, the Americans with Disabilities Act establishes clear rules regarding inquiries into medical history. Employers with more than twenty-five employees are barred from asking you about your medical history or requiring a physical exam during the application process. Once a job offer has been made, the employer may require you to take a physical, but only if a physical is required of every other employee hired for a similar job. And finally, if the job offer is withdrawn due to the results of your physical exam, the prospective employer must be able to prove that the exam showed you would have been physically incapable of performing the job for which you were applying.

According to a recent survey by the American Management Association, roughly half of all new hires in the United States are asked to undergo preemployment medical examinations. Doing so obviously makes sense if the job for which you are applying involves heavy physical activity of some kind, or is a job in which an illness could lead to catastrophic consequences (most of us would prefer not to have a bus driver with advanced coronary disease, for instance). But a large number of the jobs for which preemployment exams are done have no special physical requirements or risk to others, so it's unclear why an exam is necessary.

Moreover, even a relatively routine physical examination can provide a prospective employer with excessive amounts of private information. During the course of most exams, the doctor or her staff collects a fairly detailed medical history; a listing of medications that are currently being taken; an assessment of your vital signs (temperature, blood pressure, weight, etc.); and examines your skin, lungs, abdomen, and other areas of your body for obvious signs of illness.

In theory, the final report from a preemployment medical examination is supposed to be bare bones: Are you able to work, able to work with restrictions, or not able to work at all? However, anecdotal and survey evidence suggests that much more comprehensive reports are typically turned over to the prospective employer. And it can be very difficult to prove that you were turned down for a job because the employer didn't like the look of something in your medical exam results.

Have You Been Googalized?

The phenomenal growth of the World Wide Web and the ease with which information can be posted online has created an entirely new, entirely free resource for conducting background checks on prospective applicants (or for that matter, prospective dates). Search engines like Google and AltaVista use software called "spiders" to crawl around the Web and create huge indices of the various pages that they read on their travels. While the spiders can't gain access to every Web page (by some estimates, even the largest search engine, Google, only indexes about 25 percent of all online material), the Web is so enormous that the search engines still read and index hundreds of millions of Web pages at a time.

If you enter the name of someone into a search engine, the chances are increasingly good that some piece of their life has stuck to the Web. Obviously, this type of search is going to be more useful if the person's name is relatively uncommon, but even with widely shared names like Smith or Jones, it's still possible to find useful information if you know the city or even the state in which your target lives.

The breadth of material that is available about people is stunning; try this type of search sometime on your own name and see what comes up. Have you created a home page to share news and photos with family? Bingo. Does your gardening club or bowling league put its newsletter online? There you are, proudly reporting on the success of your delphinias at the county fair. Have you been quoted in the local newspaper recently? The newspaper archive may well be reachable by the indexing spider.

Lawyers were among the first to spot the potential of search engines to turn up useful information about people. It is now common practice to run the names of a jury pool or potential witnesses through a search engine to see if any affiliations or activities turn up that might indicate potential bias. For instance, in a recent trial for damages resulting from smoking, the to-bacco company's lawyers discovered that one prospective juror was listed on a website as a member of an active antismoking group; they were able to use that information to get the potential juror dismissed from the panel.

Other corners of the Web can also turn up potentially interesting background information. For two decades, computer users have been able to post messages on a huge range of topics to various newsgroups in a portion of the Internet known as Usenet. In the early days of the Internet, simply finding, let alone using the Usenet required some serious geek credentials. In 1995, however, a small company called Deja.com created a Web interface for the newsgroups, which made it far easier to read and post messages. By 2000, the Deja.com newsgroup archive contained 500 million postings and was over 1.5 terabytes (1,500 gigabytes) in size. [11]

In February 2001, Deja.com sold its Usenet discussion service to the Internet search engine Google Inc., which has since developed a new interface for the sometimes balky news resource. In addition to making the Usenet easier to access, Deja.com and Google have also made it possible to conduct detailed searches of the newsgroup archive. An investigator, for instance, can search for all of the messages posted by someone using a particular e-mail address, or in some cases, a person's actual name (since those are often included in a message's address line). Another popular search option, particularly for corporate espionage types, is to search for all of the messages posted from a particular domain name. For instance, if you're looking for leaks in the soft drink industry, you might do a search for all newsgroup messages posted from the domain "pepsi.com." There's no guarantee, obviously, that you'll find anything interesting, but it's often startling to see what messages people have actually posted from their employer's domain.

[7]Andrew Edgecliff-Johnson, "Corporate Security: Industry Comes Out of the Dark Shadows," The Financial Times (April 10, 2001).

[8]Although it is illegal to do so, officers have been known to pick up some extra cash by running the names of applicants through the NCIC for employer friends or former colleagues.

[9]Merely one of the many federal facilities that has wound up in a mountainous and sparsely populated state, thanks to the longevity and largesse of Senator Robert Byrd.

[10]Landry v. Attorney General, ——— Mass. ——— (1999) (challenging constitutionality of DNA database).

[11]Chris Oakes, "Usenet Sale: Sounds to Silence?," Wired.com (October 25, 2000). Downloaded from the Web on 27 October 2000 from www.wired.com/news/print/0,1294,39622,00.html.




The Naked Employee. How Technology Is Compromising Workplace Privacy
Naked Employee, The: How Technology Is Compromising Workplace Privacy
ISBN: 0814471498
EAN: 2147483647
Year: 2003
Pages: 93

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