“Liability!” You hear it every day and try to push it “downstream” as often as you can. You hire a background screening firm to help legally insulate you from it. The screening firm hires lawyers and researchers and buys massive amounts of insurance to help insulate itself from liability….and still…….it looms.
What does liability have to do with the different structures of courts? Simply put, background screening firms need to make their clients aware of what is being searched, and where. Too often, clients of Credit Reporting Agencies are expecting an in-depth, felony and misdemeanor search of all applicants, regardless of the jurisdiction that is being searched. It’s simply not the case and not always feasible due to turn around times and increased costs and the complex structures of several court systems around the U.S.
With the thousands of different courts strewn across the country, there are bound to be some variations in the way each county or state structures their criminal courts. It’s simply not possible to have all the courts, in all of the counties across the nation to be the same.
Unfortunately, the reality is each state has their own laws when it comes to structuring their court systems. Rarely (if ever) do the states keep in mind the poor, hapless, innocent researchers and document retrieval professionals, who work their fingers to the bone every day, for mere pennies. Ok, it may not be for pennies and they may not be hapless, but they do indeed have to bear the burden of these ill-conceived layouts. This leaves the professional screener or researcher left dangling and often times, exceptions need to be made in order to satisfy the pre-employment screening industry.
A large amount of states and counties have merged their courts. This allows for a simplified way of searching for both felony and misdemeanor records in the same location. But even then, a variation is often thrown into the mix. Sometimes, due to the large size of the county, multiple courthouses exist. Often times, these courthouses don’t contain records from other districts within the same county. This means different courthouses need to be checked for possible records, even within the same county.
Several states still have separated their felony and misdemeanor courts even further. Often times, this means only felony records can be searched in these states. In order to obtain misdemeanor records, a separate search is required and even then, it may not be possible or feasible due to geography, volume, court policies or budget issues.
Now, we all know that budgets don’t really play a role in background screening…right? Well, federal and state courts all seem to agree with that philosophy. More and more courts every year are basically telling the employer and the reporting agency that regardless of the amount of money it costs to do a background check, it’ll be cheaper than when they get sued for millions of dollars due to ‘over-reporting’, ‘under-reporting’, negligent hiring’, ‘negligent retention’, violating the FCRA, violating state law, violating EEOC guidelines or any of the other hundreds of things employer’s face. So, you are better off searching all of the available jurisdictions.
Unfortunately there is no “catch-all” or “one size fits all” approach to background screening. Professional organizations like Employer’s Investigative Services and dozens of others will tell you this, right from the beginning. Please be wary of those online providers or fly-by-night background companies who do not believe in transparency or advise you of “Best Practices” in the industry.
Ask your provider about a list of “Felony Only” jurisdictions and inquire about how to obtain misdemeanor records and what the cost would be. There is almost always an additional fee due to the amount of extra work that is needed. But, maybe the courts aren’t completely mistaken. Maybe it is cheaper to spend thirty dollars on a background check than 1.3 Million Dollars in a settlement.