Home > Uncategorized > New York Times on “Accuracy in Criminal Background Checks”

New York Times on “Accuracy in Criminal Background Checks”

August 31, 2012

The New York Times recently published an editorial in which it applauded the federal government for sanctioning HireRight Solutions, one of the larger criminal background reporting services.  The editorial is long on rhetoric and short on facts – we are told that the sanctions were $2.6 million, but not what HireCheck did or what it did wrong.  Nor is there any support for claims that “federal and state governments need to do more to protect people from this industry.”

The claim was that HireRight did not use “reasonable procedures to assure maximum possible accuracy of consumer report information” and so violated the FCRA.  However, the claim does not say what a reasonable procedure in the criminal background reporting context is or should be.  This highlights something:  while criminal background reports are subject to the FCRA, there haven’t been enough decided cases and hasn’t been enough time to get an idea of what “reasonable procedures” are in this area.

For example, and as the NYT suggests, some companies have databases in which they store criminal record information that was at one point obtained from a court house or similar public depository.  A company can use such a database to create a report much more quickly that it could if it had to go to various courthouses each time it created a report.  However, there may be a reduction in accuracy insofar as criminal records have been added or changed in the courthouses but not on the database.  This begs questions like:  would job-hunters rather get a fast answer to a criminal background check, even at an increased risk of inaccuracy?  If so, how much of an “increase” does there need to be in the risk?  Moreover, are there reasonable procedures for using and updating databases, assuming that doing so is permissible – i.e., would a database compiled three years ago be too old, but one year ago be reasonable?

We don’t have answers to these questions yet.  The FCRA’s application to criminal reports remains the most quickly-developing area of this law. 

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