In November 2007, Nada Nadim Prouty was convicted of improperly accessing information. U.S. v. Prouty (2007). It was discovered that Ms. Prouty was an illegal alien who emigrated from Lebanon, entered the U.S. on a student visa and had substantial ties to Hezbollah. She later became a naturalized citizen of the U.S. through a sham marriage. When Ms. Prouty was finally arrested, she simultaneously worked for the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA), as a credentialed special agent and a fully cleared analyst respectively.
“Perfection is not attainable, but if we chase perfection we can catch excellence.”
Coach Vince Lombardi – Green Bay Packers
People are often misguided and misinformed into thinking that the “perfect” background check is immediately at their fingertips. Although there are many searches and variables that attempt to create the “perfect” background check. The solution for the “perfect” background check equation will always remain unsolvable, due in large part to our overworked and decentralized criminal justice system.
Is a Signed Release Required?
Yes. In accordance with the Fair Credit Reporting Act, 15 U.S.C. § 1681b(2)(A) a signed release is required to conduct a background check on anyone applying for employment with your company.
§ 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b]
(b) Conditions for Furnishing and Using Consumer Reports for Employment Purposes.
(2) Disclosure to Consumer.
(A) In general. Except as provided in subparagraph (B), a person may not
procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless –
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
For your convenience, GObackgrounds.com provides standard releases that are located in your secure online account at Login > My Account > My Documents. You may either upload a signed release to your search or FAX it to 1(877) 526-7283.
Criminal Convictions: Seven (7) years, Ten (10) years, . . . ?
As of January 1, 2013 the following twelve (12) states do apply a limitation of seven (7) years for reporting criminal convictions: CA, CO, KS, MD, MA, MT, NV, NH, NM, NY, TX and WA.
The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. does not apply a limitation of term as to how far back an employer may look to determine an applicant’s criminal conviction history. However, when a consumer reporting agency produces a copy of a consumer’s report to the consumer or a third-party, the consumer reporting agency is required to exclude, inter alia, “adverse items of information, other than records of convictions of crimes which antedates the report by more than seven years” 15 U.S.C. § 1681c(a)(5).
In particular to California’s Seven (7) Year Rule – Cal. Civ. Code § 1786.18(b)(7) – An investigative consumer reporting agency may not make or furnish any investigative consumer report containing . . . [r]ecords of arrest, indictment, information, misdemeanor complaint or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. (emphasis added)
To complicate matters even further, some of these aforementioned states have decided to make their seven (7) year limitation rule applicable only if certain criteria are met. For example, in the State of Texas, if the expected salary of the applicant/employee is $75,000 or below, then a seven (7) year limitation on convictions from the date of disposition, release or parole exists and that information may be reported by the Consumer Reporting Agency (CRA) to the employer. Tex. Bus. & Com. Code Ann. § 20.05. However, because the Texas statute was enacted after 1996 it is preempted by 15 U.S.C. § 1681t(b)(1)(E). As such, the seven (7) year limitation does not apply.
§ 625. Relation to State laws [15 U.S.C. § 1681t]
(b) General exceptions. No requirement or prohibition may be imposed under the laws of any State
(1) with respect to any subject matter regulated under
(E) section 605 [§ 1681c], relating to information contained in consumer
reports, except that this subparagraph shall not apply to any State law in
effect on the date of enactment of the Consumer Credit Reporting Reform
Act of 1996;
However, it is a widely accepted best business practice amongst the CRA’s of the background check industry to adhere to reporting only those criminal convictions that are within the last seven (7) years to avoid confusion and to maintain a consistent work product.
Arrests, Dismissed, Pending, Expunged Cases . . . .
In accordance with Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., Equal Employment Opportunity Commission (EEOC) guidelines and best business practices, arrests, dismissed, pending, expunged and adjudication withheld cases will not appear in your final background check. Why? Because these cases, with the exception of an expunged case, have not been formally adjudicated in a court of law. Also, an expungement of record is the removal of a conviction from a person’s criminal record.¹ It is as if it never happened. As such, for an employer to make a decision based on information that has not been formally adjudicated or an expungement of record may make them prejudicial.
In the State of California, employers are prohibited from asking about arrests that did not result in a conviction. As stated in Cal. Lab. Code § 432.7(a) – No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post trial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post trial diversion program. (emphasis added)
Furthermore, California employers are limited when considering misdemeanor marijuana convictions where probation has been successfully completed, discharged or dismissed. As stated in Cal. Lab. Code § 432.8 – As relate[s] to the possession, use, influence, paraphernalia, or presence during use of Marijuana, to two (2) years from the date of conviction.
¹Black’s Law Dictionary 272 (Bryan A. Garner ed., 3rd ed., West 2006).
Is the Social Security Number (SSN) Magical?
No. A Social Security Number (SSN) is not a “magical” number whereby all the world’s questions about a person are answered from birth to present day. Another misconception is that an SSN is used as the primary identifier in determining the criminal history of an applicant. Yes, an SSN is a unique number, but in the background check industry, the name and the Date of Birth (DOB) are regarded as the primary identifiers for determining the criminal history of an applicant.
The original and essential purpose of the SSN is to keep track of the money you put into the Social Security program (est. 1937) so that you can get the benefits you are entitled to. The Civil Service Commission adopted the SSN as an official federal employee identifier in 1961, and the Internal Revenue Service adopted it as the official taxpayer ID number in 1962. If you noticed, it does not say anything about an SSN being used for tracking an individual’s criminal history, because that is not its purpose.
What Information does a SSN Trace provide?
The SSN Trace does not match the name to the SSN from the Social Security Administration (SSA). A SSN Trace discovers the past address history associated with the SSN within approximately the last seven (7) years and validates only the year and state of issuance. Effective July 2011, the Social Security Administration will be issuing SSN’s on a randomized basis, therefore the SSN Trace algorithm will no longer apply to SSN’s issued after July 2011.
What Information does a SSN Name Match provide?
A SSN Name Match officially matches the applicant’s SSN, name, DOB and gender directly from the Social Security Administration (SSA). It also, cross-references the information with the Death Master Index to insure the SSN is not that of a deceased person, adding yet another layer of protection from identity thieves. The SSN Name Match uses Consent Based Social Security Number Verification (CBSV).
Does a “National” Criminal Check Really Exist?
No. A national criminal check does not exist. A lot of background check companies often use misleading words like “National” or “U.S.” to describe their criminal databases. We do not subscribe to this nomenclature, because it would only mislead the client into thinking that they were getting a criminal check that researches every single municipality, county, state and federal jurisdiction in the country.
Although the Federal Bureau of Investigation (FBI) is attempting to create a so-called “uber” database, currently there is no public database that will check every jurisdiction in the U.S. simultaneously. Even a Nationwide Wants & Warrants search, named by law enforcement, not us, has dubious state participation. Created in 1967 by then acting FBI director J. Edgar Hoover, the National Crime Information Center (NCIC), which is the protected government database, has its flaws as well.
Is a Federal Criminal Search a National Search?
No. A Federal Criminal Search is not considered a National search. As stated above, a national criminal check does not exist. There are thirteen (13) judicial circuits, each with a court of appeals. A list of the states that compose each circuit is set forth in 28 U.S.C. § 41. There are eighty-nine (89) districts in the fifty (50) states, which are listed with their divisions in 28 U.S.C. §§ 81–144. District courts also exist in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. In total there are ninety-four (94) U.S. district courts. Some states, such as Alaska, are composed of a single judicial district. Others, such as California, are composed of multiple judicial districts. In an attempt to simplify matters, GObackgrounds.com will only search the federal jurisdiction that is contained within the state requested. For example, the Ninth Circuit contains Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington, but we would only check that specific state requested. If California was requested, only this state would be checked along with its three (3) judicial districts (Northern, Central and Southern) as well.
Do Sex Offender Databases have Missing Data?
Yes. The instant Multi-State Sex Offenders database, which contains currently registered sex and violent offenders with felony conviction records will only pull results for that jurisdiction if the state has provided a Date of Birth (DOB) in its sex offender data. As of January 2, 2013 the following fourteen (14) states do not provide DOB’s: AZ, HI, IN, LA, MA, NE, NV, PA, SD, TX, VA, WA, WI and WY. Therefore we highly recommend you also conduct a non-instant Single State Sex Offenders search that concentrates in the specific state requested.
It is also very important to understand that some information contained in a sex offender database is reported by the offender themselves. The offender is legally obligated to notify the proper law enforcement authorities when he/she moves about the state and/or country. Also, these databases are updated at the discretion of the jurisdiction. For example, the State of Colorado does not publish online those individuals who are registered as a sex offender, if that offender is either a minor or was convicted of a misdemeanor sexual offense.
Which is better an Instant Criminal or a County Criminal?
It depends on your time-frame, budget and level of quality desired. Instant Criminal Searches have immediate results, tend to be economically priced, but with a lower level of quality. A County Criminal takes about 24 to 48 hours to complete, tend to be higher priced, but with a higher level of quality.
Because Instant Criminal Searches are updated monthly, quarterly and sometimes yearly by the participating jurisdiction, they should not be used in place of a County Criminal search. Instant Criminal Searches are general in scope and are provided as a quick and economical way of conducting a cursory search. It is highly recommended that you conduct a County Criminal search in addition to your Instant Criminal search.
As you can see the “perfect” background check is really “imperfect” at best. However, as a client of GObackgrounds.com you have our unwavering commitment that we will always chase perfection when it comes to conducting your background check. In doing so, we will catch excellence.
Information contained herein is that of GObackgrounds.com, a division of Collard Investigations Internationale, LLC and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.