How to Do a Criminal Background Check: A Comprehensive Guide

Understanding someone’s past can be crucial in various situations, from hiring decisions to ensuring personal safety. A criminal background check provides valuable insight into an individual’s history, revealing potential red flags or confirming their trustworthiness. This comprehensive guide will walk you through the process of conducting a criminal background check, covering everything from the legal considerations to the various methods available and the interpretation of results.

## Why Conduct a Criminal Background Check?

There are numerous reasons why you might need to conduct a criminal background check. Some of the most common include:

* **Employment Screening:** Employers often use background checks to verify the accuracy of information provided by job applicants and to assess their suitability for a particular role. This helps mitigate the risk of hiring someone with a history of theft, violence, or other offenses that could negatively impact the workplace.
* **Tenant Screening:** Landlords and property managers use background checks to screen potential tenants, ensuring the safety and security of their property and other residents. This can help prevent property damage, disturbances, and other issues.
* **Volunteer Screening:** Organizations that rely on volunteers, especially those working with vulnerable populations like children or the elderly, often conduct background checks to protect those they serve.
* **Personal Safety:** In certain situations, you may want to conduct a background check on someone you’re dating, a new roommate, or someone you’re entrusting with your children. This can help you make informed decisions about your personal safety and the safety of your loved ones.
* **Legal Requirements:** Certain professions, such as childcare providers, healthcare workers, and security personnel, are legally required to undergo background checks.

## Legal Considerations Before Conducting a Background Check

Before you begin a criminal background check, it’s essential to understand the legal landscape. Conducting background checks without proper authorization or failing to comply with relevant laws can result in serious legal consequences. Key considerations include:

* **The Fair Credit Reporting Act (FCRA):** In the United States, the FCRA governs the collection, use, and disclosure of consumer information, including criminal records. If you use a third-party background check company (a Consumer Reporting Agency or CRA), you must comply with the FCRA. This includes:
* **Disclosure and Authorization:** You must clearly disclose to the individual that you intend to conduct a background check and obtain their written authorization. This disclosure must be separate from the employment application or other documents.
* **Adverse Action Process:** If you decide not to hire, rent to, or otherwise take adverse action against someone based on information obtained in a background check, you must follow a specific adverse action process. This includes providing the individual with a pre-adverse action notice, a copy of the background check report, and a summary of their rights under the FCRA. You must then wait a reasonable period (typically 5 business days) to allow the individual to review the report and dispute any inaccuracies before taking final adverse action. A final adverse action notice is also required.
* **Using a CRA:** Using a reputable Consumer Reporting Agency (CRA) is crucial for compliance. CRAs are experts in navigating the complexities of background check laws and regulations.
* **State and Local Laws:** Many states and local jurisdictions have their own laws regulating background checks, which may be more stringent than the FCRA. These laws may restrict the types of information you can access, limit the use of criminal records, or require you to provide additional notices to the individual. For example, some states have “ban the box” laws that prohibit employers from asking about an applicant’s criminal history on the initial application.
* **Equal Employment Opportunity Commission (EEOC) Guidance:** The EEOC has issued guidance on the use of criminal background checks in employment decisions, emphasizing the importance of avoiding discriminatory practices. Employers should carefully consider the nature and seriousness of the offense, the time elapsed since the conviction, and the nature of the job when making hiring decisions based on criminal records. A blanket policy of excluding all individuals with criminal records is generally considered discriminatory.
* **Privacy Laws:** Be mindful of privacy laws, such as GDPR (General Data Protection Regulation) in Europe, if you are conducting background checks internationally or processing the personal data of individuals located in countries with strict privacy regulations. Ensure you obtain explicit consent and handle personal data securely.

**Before conducting any background check, consult with legal counsel to ensure you are complying with all applicable federal, state, and local laws.**

## Methods for Conducting a Criminal Background Check

There are several methods for conducting a criminal background check, each with its own advantages and disadvantages.

1. **Using a Consumer Reporting Agency (CRA):** This is often the most reliable and comprehensive option, especially for employment and tenant screening. CRAs have access to a wide range of databases and resources, and they are experienced in navigating the legal complexities of background checks. They also handle the FCRA compliance aspects.

* **Benefits:**
* Comprehensive and accurate information.
* Compliance with FCRA and other relevant laws.
* Efficient and time-saving.
* Professional expertise and support.
* **Drawbacks:**
* Can be more expensive than other methods.
* Requires compliance with the FCRA.
* **Steps:**
1. **Research and select a reputable CRA:** Look for a CRA with a strong track record, positive reviews, and accreditation from relevant organizations.
2. **Create an account and provide necessary information:** You will need to provide information about your company or organization and the purpose of the background check.
3. **Obtain written authorization from the individual:** Provide the individual with a clear and conspicuous disclosure and obtain their written consent to conduct the background check.
4. **Request the background check:** Specify the types of searches you want to conduct, such as criminal records, sex offender registries, employment verification, and education verification.
5. **Review the report and take appropriate action:** Carefully review the background check report and follow the adverse action process if you decide to take adverse action based on the information in the report.

2. **Directly Accessing Public Records:** You can access criminal records directly through government agencies, such as courts and law enforcement agencies. This can be a more cost-effective option, but it can also be more time-consuming and require more effort.

* **Benefits:**
* Potentially lower cost.
* Direct access to primary sources.
* **Drawbacks:**
* Time-consuming and labor-intensive.
* May not be comprehensive.
* Requires knowledge of court systems and procedures.
* Compliance with FCRA is still your responsibility if the information is used for employment decisions.
* **Steps:**
1. **Identify the relevant jurisdictions:** Determine where the individual has lived, worked, or attended school, as you will need to search records in each of those jurisdictions.
2. **Contact the appropriate court or law enforcement agency:** Contact the court or law enforcement agency in each jurisdiction and inquire about their procedures for accessing criminal records. Some agencies may allow you to search records online, while others may require you to submit a written request.
3. **Conduct the search:** Follow the agency’s instructions to conduct the search. You may need to provide the individual’s name, date of birth, and other identifying information.
4. **Review and interpret the results:** Carefully review the records you obtain and interpret the information. Be aware that criminal records can be complex and may require specialized knowledge to understand.

3. **Using Online Background Check Services:** There are many online background check services that claim to provide instant access to criminal records. However, it’s important to be cautious when using these services, as the accuracy and reliability of the information they provide can vary widely.

* **Benefits:**
* Potentially faster and more convenient than other methods.
* Relatively low cost.
* **Drawbacks:**
* Accuracy and reliability may be questionable.
* May not be comprehensive.
* May not comply with FCRA.
* Risk of obtaining outdated or inaccurate information.
* **Steps:**
1. **Research and select a reputable online service:** Look for a service with positive reviews and a clear privacy policy. Be wary of services that make unrealistic promises or offer instant access to criminal records for a very low price.
2. **Create an account and provide necessary information:** You will need to provide the individual’s name, date of birth, and other identifying information.
3. **Conduct the search:** Follow the service’s instructions to conduct the search.
4. **Review and verify the results:** Carefully review the results you obtain and verify the accuracy of the information. Don’t rely solely on the information provided by the online service. Consider cross-referencing the information with other sources, such as court records or law enforcement agencies.

## Types of Criminal Records Searched

The types of criminal records that are searched during a background check can vary depending on the purpose of the check and the resources available. Common types of searches include:

* **National Criminal Database Search:** This search scans a database of criminal records from various sources across the country. However, it’s important to note that this database is not comprehensive and may not include all criminal records.
* **Statewide Criminal Record Search:** This search checks criminal records within a specific state. This is generally more comprehensive than a national database search, as it includes records from state courts and law enforcement agencies.
* **County Criminal Record Search:** This search checks criminal records within a specific county. This is the most granular level of search and can provide the most accurate and up-to-date information. Many CRAs recommend county-level searches as a best practice.
* **Federal Criminal Record Search:** This search checks records of federal crimes, such as drug trafficking, bank robbery, and immigration violations. These cases are handled in federal district courts.
* **Sex Offender Registry Search:** This search checks state and national sex offender registries to determine if the individual is a registered sex offender.
* **International Criminal Record Search:** If the individual has lived or worked outside the United States, you may need to conduct an international criminal record search. This can be more complex and may require the assistance of a specialized background check provider.
* **Driving Record Search:** For positions involving driving, a motor vehicle record search is essential to verify the applicant’s driving history, including any violations, suspensions, or revocations.

## Interpreting Criminal Background Check Results

Interpreting criminal background check results can be challenging, as criminal records can be complex and may contain ambiguous information. Here are some key considerations:

* **Accuracy:** Verify the accuracy of the information in the report. Criminal records can contain errors, such as misspellings of names or incorrect dates of birth. If you find any errors, contact the CRA or the relevant court or law enforcement agency to correct them.
* **Relevance:** Consider the relevance of the criminal record to the position or situation. Not all criminal convictions are equally relevant. For example, a minor traffic violation may not be relevant to a job that doesn’t involve driving. An older, non-violent conviction may not be relevant to a current hiring decision.
* **Time Elapsed:** Consider the time elapsed since the conviction. Generally, the more time that has passed since the conviction, the less relevant it is to a current decision. Some states have laws that limit the use of older criminal records.
* **Nature of the Offense:** Consider the nature of the offense. Some offenses, such as violent crimes or sex offenses, may be more concerning than others.
* **Job-Relatedness:** The EEOC emphasizes the importance of job-relatedness. Employers should carefully consider whether the criminal conduct is related to the essential functions of the job. A conviction should not be used to automatically disqualify an applicant unless it directly impacts their ability to perform the job safely and effectively.
* **Rehabilitation:** Consider whether the individual has demonstrated rehabilitation since the conviction. Has the individual completed probation or parole successfully? Have they obtained education or training? Have they shown remorse for their actions?
* **Context:** Understand the context of the criminal record. For example, a conviction that occurred during a period of personal hardship may be viewed differently than a conviction that reflects a pattern of criminal behavior.
* **Adverse Action Process:** If you decide to take adverse action based on a criminal record, be sure to follow the adverse action process outlined in the FCRA. Provide the individual with a copy of the report, a summary of their rights, and an opportunity to explain or dispute the information. Individually assess each case.

## Best Practices for Conducting Criminal Background Checks

To ensure that you are conducting criminal background checks fairly and legally, follow these best practices:

* **Develop a Written Policy:** Create a written policy outlining your procedures for conducting background checks. This policy should be consistent with all applicable laws and regulations. It should also be transparent and communicated to all applicants or individuals being screened.
* **Use a Consistent Process:** Apply the same background check process to all applicants or individuals being screened for the same position or situation. This will help ensure that you are not discriminating against any particular group.
* **Obtain Written Authorization:** Always obtain written authorization from the individual before conducting a background check. This authorization should be clear, conspicuous, and separate from other documents.
* **Review the Results Carefully:** Carefully review the results of the background check and verify the accuracy of the information. Don’t rely solely on the information provided by a CRA or online service.
* **Follow the Adverse Action Process:** If you decide to take adverse action based on a background check, be sure to follow the adverse action process outlined in the FCRA. Provide the individual with a copy of the report, a summary of their rights, and an opportunity to explain or dispute the information.
* **Maintain Confidentiality:** Keep all background check information confidential and store it securely. Only share the information with individuals who have a legitimate need to know.
* **Train Your Staff:** Train your staff on the proper procedures for conducting background checks and interpreting the results. This will help ensure that they are complying with all applicable laws and regulations.
* **Consult with Legal Counsel:** Consult with legal counsel to ensure that your background check policies and procedures are compliant with all applicable federal, state, and local laws.
* **Regularly Review and Update Your Policy:** Laws and regulations related to background checks are constantly evolving. Regularly review and update your policy to ensure that it remains compliant and effective.

## Alternatives to Criminal Background Checks

In some situations, alternatives to criminal background checks may be appropriate. These alternatives may be less intrusive and less expensive, while still providing valuable information. Some examples include:

* **Reference Checks:** Contacting previous employers or other references can provide valuable insights into an individual’s work ethic, character, and reliability.
* **Education and Employment Verification:** Verifying an individual’s education and employment history can help ensure that they are being truthful about their qualifications.
* **Social Media Screening:** Reviewing an individual’s social media profiles can provide insights into their personality, interests, and values. However, it’s important to be aware of the potential for bias when using social media for screening purposes.
* **Skills Assessments:** Administering skills assessments can help evaluate an individual’s ability to perform the essential functions of a job.
* **Personality Tests:** Personality tests can provide insights into an individual’s personality traits and work style.

By using a combination of these methods, you can gain a comprehensive understanding of an individual’s background and qualifications without relying solely on criminal records.

## Conclusion

Conducting a criminal background check can be a valuable tool for making informed decisions about hiring, renting, volunteering, and personal safety. However, it’s important to understand the legal considerations, use appropriate methods, and interpret the results carefully. By following the guidelines and best practices outlined in this guide, you can ensure that you are conducting background checks fairly, legally, and effectively. Remember to always consult with legal counsel to ensure compliance with all applicable laws and regulations.