Understanding Criminal Background Checks for Employment

When an organization is considering hiring a job applicant, the decision is often contingent upon the results of a criminal background check. While employers can attempt background checks on their own, due to the magnitude of the subject matter and potential for inconsistent, unreliable data, many prefer to work with a background screening partner for this service. By understanding how they are run and what shows up on a criminal background check, you will be better equipped to make the decision whether to go it alone or work with a screening provider.  

Below, we'll address some of the most frequently asked questions about criminal background checks, including what they entail and how the results should be handled.

Do you need to get permission to conduct criminal background checks?

Yes, an employer must obtain the candidate's consent before conducting a criminal background check. This involves presenting and obtaining acknowledgment of required disclosures and summaries of rights, as well as written authorization from the candidate. In some jurisdictions, this step is only permissible after a conditional job offer has been made. 

What information is collected and processed during criminal background checks? 

The background check process involves collecting and processing the following information: 

• Candidate's personal details: name, social security number (SSN), date of birth (DOB), current address, and alias names 
• SSN trace to retrieve address history for the last 7 years (or as requested by the client) and identify alias names associated with that history
• County criminal searches for all relevant names and counties identified through the SSN trace and candidate profile
• Nationwide criminal database search (CrimScan+) using the primary name and aliases
• Additional county criminal searches for convictions found during the CrimScan+ search

How are county searches conducted?

County searches are dispatched using the most accurate and efficient method for each jurisdiction, which may include: 

• Electronic/integrated solutions with the county's data repository
• Researchers contacting courts directly via fax, postal mail, or web-based methods
• "Court runners" visiting courthouses to conduct research 

How Are Criminal History Search Results Delivered? 

The delivery of search results varies by jurisdiction, with electronic/integrated searches typically returning faster than those conducted by researchers or court runners. Results containing records undergo an additional quality control step to ensure compliance with relevant laws and regulations. 

What Happens if You Need to Reject a Job Applicant Based on Criminal History? 

If you plan to reject a job applicant due to information obtained during a criminal background check, you must:

1. Inform the applicant via a pre-adverse action notice
2. Conduct an individualized assessment in compliance with EEOC guidance 
3. Provide an adverse action notice 

Depending on the jurisdiction, additional steps or forms may be required. 

How Are International Background Checks Handled? 

It is recommended that employers work with trusted screening partners to conduct background checks for candidates who have lived or worked outside the U.S. Foley's partnership with a leading global screening provider enables compliant and timely fulfillment of international background check services in over 230 countries. Supported services include criminal history, credit and bankruptcy checks, motor vehicle reports, education verification, and employment verification. 

Do Criminal Traffic Offenses Appear on Criminal Background Checks? 

Criminal traffic offenses may appear on some county criminal searches or motor vehicle reports (MVRs), depending on the jurisdiction. Unless driving is a job requirement, Foley's guidance is to exclude MVRs from the background check and hiring decision. 

Why Avoid "Instant" National Criminal Background Checks? 

While nationwide criminal databases exist, their update frequency is unknown, and they are not considered primary sources. Foley uses these databases as "pointers" to identify potential criminal history, which is then validated through county criminal searches to ensure accuracy and compliance. 

Still Have Questions? Looking for a Background Check Service Provider? To make fair and better hiring decisions, fast and accurate background checks are an important part of many employers' hiring and onboarding process. For more information on Foley’s background check services, please don't hesitate to contact us. 

The information contained herein is for informational and educational purposes and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any information provided herein.