Sixty percent of companies perform criminal background checks to reduce their liability, reduce the risk of theft, minimize threats to the workplace, and promote public safety. But flaws in those background checks make them misleading to employers and can create unnecessary barriers to employment for people with criminal records long after those people have served their time.
A new Urban Institute report examines the two types of criminal background checks—FBI (Federal Bureau of Investigation) background checks and checks from commercial vendors—and finds that both produce incomplete and inaccurate reports. Here’s why that can be problematic for employers, employees, and the public.
1. Background checks identify people as having criminal histories when they might not.
FBI background checks are based on fingerprinting, which accurately links fingerprints to a person’s identity based on unique biometric data. However, the information the background check returns may be inaccurate or incomplete.
States report data to the FBI inconsistently, especially for outcomes of arrests and expunged records. People may be arrested and charged, which would show up in an FBI background check, but if those charges were dropped or the person was not convicted, the FBI report may not reflect that.
How common are these inaccuracies? Court disposition data indicate the outcome of an arrest, and nationally, only 49 percent of arrests have a matching court disposition. It is difficult to know how many people are affected by missing court dispositions, but one study examining 75 major US counties found that as many as one-third of all arrests with felony charges did not result in conviction.
FBI background checks may also include records that trace back further than is permissible by law. Though employers technically aren’t allowed to consider those older records when making hiring decisions, including those records puts justice-involved people at risk of discrimination.
2. Background checks identify people as having no criminal history when in fact they might.
Criminal background checks conducted by commercial vendors also have significant flaws. Commercial vendors’ reports have been criticized for capturing false negatives that indicate a lack of criminal history when there actually is one.
Commercial vendors check name, date of birth, and social security number (when provided and accurate) against online public records, as well as data purchased from courts and state repositories, sometimes even checking local court records manually. But a company conducting a background check can’t check court records in every jurisdiction. Applicants may be marked as clear when the record does not show crimes committed in other states or in jurisdictions for which the company doesn’t own records.
3. Background checks may lead employers to think people with criminal histories pose a threat when they don’t.
In 2014, the FBI provided 30 million criminal history records for noncriminal justice purposes, like job applicant background checks—a 29 percent increase from 2010. Clearly, employers care whether a prospective employee has a criminal history, but do employers recognize when a criminal history matters and when it doesn’t?
One study found that for any given crime, there is a period after which people with a record pose no heightened risk to employers or public safety. Even for a violent crime like aggravated assault, after 4.3 years, a person is no more likely to commit another assault than a random person of the same age drawn from the general population.
But background checks let employers judge applicants for their past actions when they no longer pose a heightened risk. Regulations mandate that arrest records in FBI records and consumer reports be revealed to employers for up to seven years and that, depending on local regulations, some convictions can be included no matter how old they are—a rule that doesn’t match up with the empirical evidence around public safety for most crimes.
4. People with criminal records face huge barriers to employment, even without background checks.
Collateral consequences, the hurdles people with criminal records encounter that go above and beyond the sentence they serve, include everything from restrictions on public housing to trouble qualifying for food stamps. Many collateral consequences take the form of local regulations restricting employment for justice-involved people.
A national repository lists 45,142 local regulations limiting where justice-involved people can work and what kinds of jobs they can hold. Forty-seven percent of employment regulations specifically restrict people with any felony from being hired, not even specifying that the felony be categorized as violent.
5. Failing to give people with criminal records a chance is against everyone’s interest.
The reports employers see now disqualify potentially desirable employees. And when labor markets are slack, it doesn’t serve employers well to miss out on good hires because of inaccuracies or misconceptions.
It is also in the public interest to increase employment opportunities for people with criminal records. Employment after incarceration is a key factor in reducing a person’s risk of recidivism. Not only does it provide a source of income, it also offers structure, a safe way to spend time, and new and positive social networks. Studies show that risk of recidivism decreases if people can get jobs quickly after being released from prison.
Background checks exist for a reason, but they do harm, too. Improving background check practices and decreasing barriers to employment for justice-involved people will help ensure the public is safe, employers are well informed, and people have access to the jobs they need