Database Searches vs. Primary Source Searches

Generally speaking, there are two ways that searches can be conducted for public records: one is by going directly to the primary source of the information, and the other is by searching an aggregated database. Not surprisingly, public records are maintained at the original source, which can be the county courthouse where a crime was originally prosecuted, the federal district court where an individual was sued, or the Department of Motor Vehicles that provided someone with a driver’s license. As it relates to the specific records they maintain, these individual sources will generally provide an employer with the most accurate, up-to-date, and complete information possible—making them the most helpful and most reliable for an organization to use in making employment decisions.

However, searching source by source may be expensive, time-consuming, and not comprise the widest scope of jurisdictions in which the individual may have public records. To help mitigate this, database searches do have certain advantages. They can effectively and affordably aggregate data and make it searchable and accessible via an online portal. However, databases are not infallible, for example, if some sources do not report into them or if the information in the database is not updated regularly.

Consequently, while database searches may provide useful “tip or lead” information to help uncover an applicant’s or employee’s criminal history information, those tips or leads should then be verified at the source. In fact, the Fair Credit Reporting Act (FCRA) mandates that consumer reporting agencies (CRAs) that provide public records information to employers for employment purposes either confirm the public records information at the source or provide contemporaneous notice to the employee or applicant of the reporting of the information.

Considerations for a Successful Public Records Search

So, since there is no single database into which an employer can type an applicant’s name for an immediate, accurate, complete history, what should the organization consider as it approaches a public records search? There are a few important factors to keep in mind when approaching the process:

Where to Search

Nowadays, few people live in the same town for their entire lives. Mobility is an integral aspect of modern life, as people move to attend school, start a new job, be closer to family, engage in a new business opportunity, or simply to start over. An effective public records search is typically based on an accurate address history for an individual, which includes not only where a person may have resided, but also geographies where he or she attended an educational institution or worked for an employer. It is not uncommon in many areas of the United States for a person to reside in one county and work in an adjoining one. Additionally, a person may have attended university somewhere without ever having officially lived in that area—common with many students whose permanent address is their parents’ home.

An effective public records search is typically based on an accurate address history for an individual, which includes not only where a person may have resided, but also geographies where he or she attended an educational institution or worked for an employer.

An accurate residential history, complemented by noting other jurisdictions where an individual may possibly have a geographic presence, is often the most important first step in a successful background check. That said, it is definitely not outside the realm of possibility that someone may have a record in another jurisdiction where he or she has never lived, worked, or studied. Consider, for instance, an individual who committed a crime while on vacation or on a business trip. To help mitigate against this possibility, multi-jurisdictional databases can play an important role, casting a much wider geographical net to look for possible records in other locations.

What to Search

As discussed earlier, there are a multitude of different types of public records that are available to an employer during the course of a background check. The following section will provide some additional detail about best practices when deciding what public records an employer should consider searching, but as a general rule, organizations should take into account the industry in which they operate, the responsibilities of the position, exposure to assets and/or customers, fiduciary responsibilities, interaction with vulnerable populations, and impact on the general public as baseline considerations when determining the right mix of public records searches to perform for an applicant. For example, a bankruptcy record search may not be necessary for a schoolteacher, but may be valuable for an accounting manager.

When to Search

Historically speaking, most organizations consider a seven-year search as the standard for a background check. Yet employment background checks in some specific industries, like health care, financial services, and education, may merit a longer look into an applicant’s history. How far back counties report criminal record information varies from jurisdiction to jurisdiction—meaning a criminal record search in one jurisdiction could return information going much further back than in another. Employers should be cautious as to how they use older records and work with their legal counsel to ensure that any hiring or retention decisions based on such data complies with federal, state, and industry-specific laws and regulations.

How to Search

Just as people can change geographies over the course of their lives, they can also adopt new names. While popular opinion typically attributes the use of an alias to criminal or shady behavior, in reality, many people take on a new name for very innocent reasons. One such common example is after marriage—think of the many women who take their husbands’ last names (or even vice versa in our modern times). As such, employers should be careful to include all known former names in a public records search. Otherwise, important information could be missed.

Another critical consideration for the methodology of a public records search is to understand the importance of identifying information, which helps match a record to the applicant. There is little standardization among various sources, like county courts, as to what identifiers (e.g., name, date of birth, address, and in rare cases, Social Security number) can be used to search for records. These inconsistent search practices can make it challenging to match a public record to a given individual.

Best Practices for an Effective Public Records Search

Many employers looking to perform a public records search on an applicant may be wondering if there is a set of proven best practices they ought to follow to better ensure that these searches provide them with the best information to make an informed hiring or retention decision. Unfortunately, there is no one group of guiding principles applicable to every employer or position, but there are some general foundational considerations to keep top of mind as an organization contemplates a public records search:

1. Align the scope and depth of the public records search with the nature of the position. The search should adequately reflect such critical concerns as:
   • The level and profile of the position
   • The reach and nature of responsibilities
   • How much access the position has to assets, customers, and data
   • Potential effect on safety and security
   • Financial/fiduciary responsibilities
   • Interaction with vulnerable populations, like the sick, children, or the elderly
   • Specific industry considerations

   Of course, a C-suite executive would likely merit a more extensive public records search than an entry- level mail clerk, but such distinctions may not always be so obvious. Carefully addressing each of these concerns can help an organization better determine what, where, and how far back to look in a public records search.

2. Get the best information available for making an employment decision. The primary goal of a public records search is to provide an organization with the highest quality, most accurate information it needs to make a hiring or retention decision. With this in mind, organizations should focus on maximizing coverage and looking for the most appropriate records germane to that position.
3. Remain respectful of budgetary constraints. It may be cost-prohibitive to perform an exhaustive check for all of your organization’s job candidates. It is best for an employer to determine on the front end what it is comfortable spending on each position type and request the widest range of information within that budget.
4. Support better time-to-hire. One of the more frustrating aspects of a public records search is that not all sources return data in the same timeframe. Some counties, especially those under budget reductions or those that have yet to digitize records, are notoriously slow and can take sometimes weeks to return search results. In some instances, there may be viable alternate sources of data to consider that provide more expedient results.
5. Promote consistency across job levels. One critical issue to keep in mind is that a public records search should be consistent across similar positions. So, for example, if an employer is simultaneously recruiting multiple customer service representatives at the same level, the scope and depth of the public records search should be the same for all applicants. This will allow the employer to consider the same information across the board and ultimately help protect against claims of discrimination and possible legal action.
6. Stay compliant with all applicable laws and regulations. Employers should remember that there are a number of laws, regulations, and even guidance that can affect how public records are used as part of an employment background check. In 2012, for instance, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance regarding how it believes an employer should use criminal record information to make a hiring decision. According to this guidance, employers should consider the nature, severity, and how recently a crime was committed, as well as its relevance to the open position, before taking adverse action against an applicant. Additionally, a number of state-level laws have placed restrictions on what criminal history information employers can request from candidates and when they can request such information. Therefore, employers would be well-advised to engage with their legal counsel to better ensure their background screening programs are compliant with applicable laws and regulations.