Relying on FBI Fingerprint Background Checks Is Flawed, Risky for Employers

State legislators are increasingly proposing that FBI and state fingerprint checks be a required part of employment screening, but there are potentially serious problems with this: results from these databases are incomplete, the databases include arrest records employers shouldn’t be considering and the system doesn’t allow applicants to challenge the results.

“Fingerprint background checks are popular because they are well-known—and legislators may not be aware of their limitations and shortcomings,” said Angela Preston, senior vice president and counsel, corporate ethics and compliance for SterlingBackcheck, a background screening company based in New York City.

The company studied the potential problems with fingerprint checks in a new report. “Fingerprint checks do have value, but it’s important to remember that the source databases are designed for law enforcement, not employment screening,” Preston said.

The FBI didn’t return a call for comment.

Less than the ‘Gold Standard’

A misperception about the FBI database is the idea that it’s all-encompassing, said W. Barry Nixon, a background screening consultant based in Alpharetta, Ga. “This belief has been perpetrated by TV programs like “CSI” and “Criminal Minds,” but it’s a myth that unfortunately is acted on frequently by politicians and has unintended consequences, including a false sense of security built on a faulty premise and incomplete database.”

Hundreds of thousands of job applicants each year are negatively impacted by incomplete FBI data, according to the National Employment Law Project (NELP), a workers’ employment rights advocacy group based in New York City. “Nearly half of FBI rap sheets failed to include information on the outcome of a case after an arrest—for example, whether a charge was dismissed or otherwise disposed of without a conviction, or if a record was expunged … routine omissions [which] seriously prejudice the employment prospects of an estimated 600,000 workers every year,” the group said.

Other shortcomings of the FBI’s fingerprint database include:

• Up to half of all final outcome criminal records are missing from the FBI database because some states are not required to submit them. In addition, a 2015 Government Accountability Office report highlighted missing information in state records, with 10 states reporting that their databases were 50 percent or less complete, 13 states reporting between 75 percent and 50 percent complete, and only 20 states reporting 76-100 percent complete. Seven states did not have any data available.
• Records can be weeks or months out of date because of an irregular update schedule.
• Arrest records are often included, even though the Equal Employment Opportunity Commission (EEOC) asserts that arrests not resulting in a conviction should not be considered in hiring decisions.
• Records often lack a final court disposition, which can lead to confusion about an applicant’s criminal history and result in employer sanctions from the EEOC. “The missing information is frequently beneficial to job seekers,” said Nayantara Mehta, an Oakland, Calif.-based ‎senior staff attorney for NELP. For example, one-third of felony arrests do not result in conviction and many others are reduced to misdemeanors, she said. “That’s information that would make a huge difference to a candidate, where a certain conviction may be a bar to their getting a job. Obviously, someone should not be shut out of a job based on a conviction that never happened.” In addition, other cases are overturned on appeal, expunged or otherwise resolved in favor of the worker without these developments ever being reflected on the individual’s records with the FBI, she said.
• FBI reports don’t allow applicants to challenge the results, unlike regulated consumer reports that protect job applicants from unfair employment actions.

Incomplete FBI Data

Additionally, a set of fingerprints frequently doesn’t tell much of a story, Preston said. “It is often necessary to use other personal identifiers to access a full criminal history.” In addition, the FBI database is not a case management system, she said. “It’s a contributory database that contains arrest records as submitted voluntarily by state law enforcement agencies. It depends on record updates from federal, state and county courts to provide details on the outcome of the arrest. Often these updates never come.”

A 2006 report by the U.S. Department of Justice found that final outcomes of arrests are missing in about half of the FBI’s records. “A check of both public and commercial databases and of primary sources of criminal history information such as county courthouses would perhaps provide the most complete and up-to-date information,” the Office of the Attorney General concluded in the report.

There are instances where fingerprints are never even taken, and these charges and dispositions never get into the database, according to Preston. She cited a 2009 study from Portland State University in Oregon which found that half of the state’s “book and release” cases over a three-month span had no control numbers because no fingerprints were taken. And in Ohio, a May 2015 investigation conducted by The Columbus Dispatch found that “thousands of convictions, which police officers and public and private employers hope to detect during background checks, are missing from the state database.”

For employment screenings and other important business decisions, “what matters is the story, the data behind the identification,” Preston said. “Without a complete or accurate story, identification can go only so far.”

Consumer reporting agencies go beyond fingerprint checks and use personal identifiers to pour over thousands of primary sources to compile information to produce not only candidates’ criminal history records with their outcomes, but driving and employment records, as well as education and professional certification verification.

Applicant Protections

Lastly, FBI reports do not afford applicants the protections of background checks regulated by the Fair Credit Reporting Act and similar state laws. Applicants have the right to challenge any information contained in a professional employment screening report.

“An applicant who is the subject of an incomplete or inaccurate FBI rap sheet does not have the opportunity to set the record straight,” Preston said. “This could keep good prospective employees from receiving an offer or keeping a job. In crucial hiring decisions, such gaps are unacceptable.”

Employers that request a background check from a screening firm are obligated to:

• Notify the applicant that a background check will be performed and obtain his or her written permission to conduct it.
• Give applicants a copy of their criminal history report and a summary of their rights before making an adverse decision based on the background check.
• Notify applicants who are not selected based on something in the report of their rights to see information being reported about them and to dispute the accuracy or completeness of the report.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy