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The private use of public records.

The Private Use of Public Records


The pool of job candidates is growing at a faster pace than the number of positions available. As even lower level positions demand more skills, the task of distinguishing the truly qualified from the not so qualified takes on greater importance.

The increasing threat of legal liability for negligent hiring only makes the need for strong preemployment screening procedures more acute. Companies that fail to screen their employees before placing them on the job do so at their own risk.

Getting the job done is not easy. The application or resume with which a candidate enters a company's doors is seldom adequate to reveal everything the company needs to know about an individual. Misstatements, exaggerations, or omissions may conceal troubling, job-relevant flaws in character or competence.

In the preemployment screening process, the security manager is called on to expand or verify the picture that emerges from the applicant-supplied written record. A good program can both identify particularly strong candidates and ferret out weak ones.

Unfortunately, the traditional sources investigators have used to qualify applicants are no longer adequate--if they ever were. With nothing to gain and much to lose, previous employers are less willing to discuss a present or former employee's tenure with their firms. Restrictions on the use of the polygraph and similar devices have tightened at both the state and federal level. Paper-and-pencil tests are of uneven reliability and require interpretations that many security professionals are unwilling to undertake on a regular basis.

However, one additional weapon should be added to the preemployment screening arsenal. While often overlooked or discounted, this source can contribute to the efficiency and effectiveness of any company's efforts in this arena.

Local, state, and national authorities maintain literally millions of records relating to individuals who have come under their jurisdiction for one reason or another. These public records often reveal important job-relevant facts that can help an investigator piece together a candidate's background.

Public records are not a panacea. Like any tool, they have their limitations. But, they do bring benefits that many security experts may never have previously considered.

TO BEGIN, A SUMMARY OF THE VARious types of records that can be of particular value in preemployment investigations is in order. Five basic types offer the most potential.

Criminal records. An arrest record, by itself, arguably says nothing about an individual given the historic presumption of innocence until proven guilty.

Conviction histories are a different matter. These records have obvious applications in a number of security contexts. An applicant with a background of theft might be unsuited to a sensitive job. Positions involving contact with the public demand workers who have no pattern of aggressive behavior. Documented substance abuse problems would require company follow-up.

The continuing growth in negligent hiring decisions makes criminal histories particularly important. The courts look to see whether facts in the employee's background would have suggested to a reasonably prudent employer that the applicant would be unfit or dangerous in the position to be filled. In nearly every case to date, undiscovered criminal activity has been the basis whenever a court has imposed liability under this doctrine.

Workers' compensation records. Each of the 50 states enters and maintains histories of claims of compensable job-related injuries.

An isolated claim may be neither a disqualifier from employment nor a signal of future trouble. On the other hand, patterns of abuse of workers' compensation laws are significant. Just as important, a previous injury may make some applicants unsuited for positions with significant physical requirements.

Driving records. State motor vehicle departments are charged with the licensing and oversight of their drivers. These offices disseminate more than just a list of traffic offenses. Helpful identifying data on drivers is also available. These bits of data are made available to employers and others through a motor vehicle report (MVR).

Through wise use of MVRs, security can obtain or confirm an applicant's full name, date of birth, social security number, and physical description. The type of license granted, restrictions on its use, and information on whether another state's license was surrendered at the time of issuance provide additional background data.

The MVR can fill in many blanks common in typical investigations. In addition, it can serve as a cross-check to uncover falsified or misleading data supplied by an applicant or employee.

Federal records. This broad category encompasses three different types of matters over which federal courts exercise jurisdiction: criminal cases involving violations of federal law, civil cases documenting litigation between private parties in federal court, and bankruptcy filings under which individuals and businesses have sought relief from their creditors.

Many of the matters within the province of the federal court are quite serious. Mail fraud, interstate drug trafficking, civil rights violations, and similar matters are almost always federal crimes. Civil matters that are filed at the federal level are also typically significant in nature and may reveal areas into which a deeper inquiry would be appropriate.

Educational records. Included here are histories of the degrees, attendance, and records of a postsecondary institution's students and graduates. These files might be more properly thought of as quasi-public because they are not necessarily held by a government agency. However, they raise many of the same questions of access and use as the other purely public records.

Education is among the first inquiries on most employment applications. These credentials say much about an individual's motivation, initiative, qualifications, and leadership abilities. Unfortunately, companies are only now understanding both the prevalence and danger of falsified or exaggerated educational accomplishments.

PUBLIC AND QUASI-PUBLIC records bring several basic advantages to the investigator.

First, they present hard, objective facts. A person's past has significant bearing on the present and future. By drawing from a variety of sources--including public records--an investigator can gain a better picture of an applicant's character and competence.

Second, they are an independent source of information. Unlike resumes, references, and paper-and-pencil tests, public records make the security department's success less dependent on the willingness of another person to talk.

Third, the potential applications of these records are enormous. Among the uses security personnel will find for public records are the following:

* uncovering falsified employment applications

* revealing troublesome, job-relevant behavioral patterns and tendencies

* documenting substance abuse problems in an individual's background

* confirming social security number, past states of residence, and other key identifiers

* discovering a potentially dangerous susceptibility to injury

However, the fact remains that until now these records have remained largely untapped even by experienced security experts. That raises an obvious question: Why?

The primary culprit has been a series of myths that have come to be consciously or unconsciously accepted as truth. Though these myths take many forms, they fall into three basic categories. Each represents a prevalent misconception that, when believed, can convince even the finest professionals that public records are of little or no value in their everyday pursuits.

Before public records gain broad acceptance as a screening tool, however, skeptical security personnel must first see the fallacies inherent in each myth.

Myth #1: legal unavailability. This misconception occurs the most frequently. A common perception exists that no matter how valuable public records may be, they are seldom legally accessible.

Some believe that the constitutional right of privacy effectively bars the government from releasing records on one individual to another individual or company. This presumption is most often held with respect to criminal records. After all, these are usually personal matters that the subject would prefer not be made known if possible.

The argument, however, has no legal merit. With the ground-breaking decision in Paul v. Davis, 424 US 693 (1976), the US Supreme Court ruled that the right of privacy does not extend to an individual's criminal record. The privacy protection is much narrower than that. The Court has since confirmed that while the US Constitution may not require states to make criminal records available, it certainly does not prohibit them from doing so, especially in an employment context.

As a result, most states have determined that the best course is to make the records available but place solid safeguards around their use. These protections include legal remedies to protect those unfairly discriminated against and better controls on the states' data-keeping systems to minimize the chance of misidentification or other error.

The Equal Employment Opportunity Commission (EEOC) holds a similar view. The EEOC has mandated that an applicant cannot be denied employment solely because of a prior criminal record that is not relevant to the performance of the job. However, the EEOC has also recognized that in other contexts a criminal record may be so germane as to bar employment.

The surest refutation of the myth that public records are legally unavailable comes from the statistical evidence compiled by National Employment Screening Services (NESS). More than 91 percent of the nation's 3,100 counties and parishes have reported to researchers there that they do release criminal conviction records for employment purposes. In fact, this number is understated. The 91 percent figure does not include the many counties in which the records are available but staff shortages have forced the clerks to adopt a self-service policy. (They do not have time to do the search themselves, but employers are welcome to consult the indexes on their own in the court office.)

Statistics on the record types are equally impressive. All 50 states make MVRs quickly available for employment purposes. More than 97 percent of the over 3,000 postsecondary educational institutions contacted by NESS also reported their willingness to assist employers in credential investigations. While the states are slightly more protective of workers' compensation filings, a clear majority also will search these files for employers.

Security professionals who undertake to incorporate criminal and other public records into their background investigations should exercise some common sense and basic care. Legal counsel conversant with the requirements of the jurisdiction in which the search is to be conducted should be able to alert them to appropriate precautions.

Companies should normally tell their applicants the nature and purpose of the information-gathering process. Obtaining the subject's written authorization for the search, allowing him or her to inspect any records obtained, and instituting strict procedures to maintain the confidentiality of investigations should also be prerequisites.

Myth #2: practical access problems. The second myth follows closely from the first. Many security professionals have been led to believe that practical obstacles are an even bigger hindrance to access than the legal questions. The assumption is that even if technically available, the records are made all but inaccessible by bureaucratic red tape.

Where does one go to tap a certain type of record? What information has to be supplied to enable clerks to conduct a records check? One problem here is that records are fairly decentralized. There is no national office of public records holding every possible file for every location in the country. In an increasingly mobile society in which job applicants and employees may have lived in a number of different jurisdictions before reaching a company's doorstep, this is no small problem.

Again, the reality differs sharply from the myth. Most security professionals, for example, are aware that each state (except Nevada) has a central repository for criminal records. The stiff restrictions erected by these repositories on who can access their files are also well-known. Often access is limited to criminal justice agencies, with private employers effectively excluded.

The conclusion that criminal records are unavailable in most states, however, is unwarranted. The missing link is that in essentially every state there is an alternate source for conviction data. The central repository actually maintains only a compilation of records originally entered in the county courthouses throughout the state. These courthouses are themselves the primary and best source for criminal histories. By contacting these primary sources directly, employers can bypass the central repositories--and their harsh restrictions--altogether.

Is the do-it-yourself approach to public record research really practical? That is a fair question. The total universe of repositories for just the five record classes discussed in this article (criminal, workers' compensation, driving, federal, and educational) is composed of some 7,500 different repositories. The next employee or applicant who walks through the door may come from a state hundreds of miles away. How can a security manager be prepared to gain access to that jurisdiction's records?

Well, there is some good news. Two of the record types (driving histories and workers' compensation claims) are held exclusively at the state level--only 51 offices control records for the entire country. Even on the records that are more decentralized (criminal, federal, and educational), the offices that control the files are by and large willing to help employers.

The procedures governing the release of records are less onerous than may be imagined. Over half of all the counties in the country, for example, will do a record search for an employer over the phone. Over 80 percent of the nation's colleges and universities will give employers an immediate telephone verification of degree or attendance.

The key is to work within the repository's system. For example, if a school has its student files indexed by social security number, it will not be able to conduct any search unless this piece of data is supplied.

What identifiers are most commonly used by the repositories? Exhibit 1 shows the frequency of various search requirements for criminal records in the nation's county courthouses, according to the most recent data compiled by NESS.

For colleges and universities, the statistics compiled by NESS researchers are shown in Exhibit 2.

These search requirements are not particularly difficult. A company's standard job application form can easily be modified, if necessary, to capture the required information.

For those companies that have tried to make public records a major part of their investigations, the biggest problem has been finding the office to call or write. The research, requirements, and procedures gathered by NESS have been gathered in the third edition of The Guide to Background Investigations. Further information on The Guide to Background Investigations can be obtained from Source Publications, 4110 South 100th E. Ave., Tulsa, OK 74146 (800/247-8713).

Myth #3: high cost. With all that public records can do for the security department, one could logically assume that these sources must be quite costly. The hefty charges of some service bureaus conducting preemployment screening investigations tend to reinforce this belief.

However, government offices are not in the business to make a profit on their various services. Almost without exception, when records are made available they are offered free or at only a nominal charge to compensate the repository for its time and direct out-of-pocket costs.

A few examples, again taken from NESS's research, illustrate the point. Of the 3,100 counties and parishes in the country, at last count 2,847 reported they would do a criminal record search for employment purposes. Of this total, 67 percent said they would conduct the search at no charge. Less than 25 percent of the counties that do charge use an hourly rate or base their fee on the number of years they are asked to search. Most have established a minimal set fee--usually under $10, often under $5.

Motor vehicle reports (MVRs) are also quite economical. Employers in the trucking industry are required by Interstate Commerce Commission regulations to investigate the driving history of every driver they hire. As a result, each state has a highly automated and inexpensive mechanism in place to supply these reports to employers. At the low end, these reports can be procured for only $1 in California. Louisiana, at $15 per applicant, is easily the most expensive state. The vast majority of states are much closer to the California standard, hovering in the $2 to $3 range.

In the realm of colleges and universities, the statistics are even more promising. Less than 1 percent of the over 3,000 postsecondary institutions NESs has contacted charge a fee for verifying the attendance or degree of a former or present student.

Many of the reasons public records have been ignored or at least not stressed as an investigative tool are not reasons at all. They are perceptions based on a faulty understanding of the facts surrounding these sources.

Not only are public records informative, widely available, and inexpensive, their potential in many cases cannot be duplicated by other investigative techniques. As a result, security professionals would do well to reconsider whether they are taking maximum advantage of the benefits this pool of data has to offer.

Richard C. Long is an attorney and executive vice president of National Employment Screening Services in Tulsa, OK.
COPYRIGHT 1989 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1989 Gale, Cengage Learning. All rights reserved.

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Title Annotation:pre-employment screening
Author:Long, Richard C.
Publication:Security Management
Date:Jul 1, 1989
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