When a conviction occurs, there are several
possible sentences. For example, the defendant may have to perform
community service, pay a fine, or might be placed on probation.
Sometimes the defendant will be sentenced to incarceration. When an
individual is incarcerated for a misdemeanor, they will be sent to
jail, rather than state prison. If, however, it is a felony
conviction, the defendant may be sent to either jail or prison.
Generally only the most violent felons, serious drug abusers, and
repeat offenders are sent to prison. Records of imprisonment in
state prison are called corrections records. Arrest records,
criminal court records, and correction records are sent to the
state criminal repository.
The Mythical Nationwide Criminal Check
While the National Criminal File search
sounds extremely good, the reality is that there is no such thing as
a nationwide criminal records check. Even the FBI database is not
truly nationwide. The FBI database (NCIC) does not include most
misdemeanors. Many records never make their way to the FBI because
the records must be sent from the county to the state and from the
state to the FBI, and frequently there are breakdowns in the
process. Nevertheless, the NCIC database is the closest thing that
we have to a national criminal database, and it is far more
comprehensive than the NCF.
The vast majority
of the data included in the NCF is made up of corrections records.
Again, only the most serious criminals are sent to state prison.
One of our clients requested a background check on an applicant who
was a CNA and who worked at the UC San Francisco Medical Center.
Since she was licensed, she had been cleared through the California
state criminal repository. In spite of receiving a clearance
from the state, our client requested a county criminal check in San
Francisco. We found that she had murdered her boyfriend with a
kitchen knife and had been convicted of manslaughter. She was
sentenced to one year in jail and was then placed on probation. If a
NCF search was conducted the record would not have been found, as
she was sent to jail rather than prison. The state repository did
not have a record of this conviction and consequently this
information was also not sent to the FBI.
While many of the companies offering a NCF search claim that data
from state criminal repositories, corrections records, county
criminal court records, traffic records, and sex offender records
are included, the truth is that these databases contain very little
in the way of records from state repositories or county criminal
courts. In Arizona, for example the NCF does not include any data
from the most populous Arizona counties: Maricopa County, Mohave
County and Pima County. Phoenix and Tucson are located in those
counties. Arizona is considered a "premium state" by these vendors,
because some rural counties are included. You really have to study
the fine print to find out what is missing.
Our company has been conducting criminal checks on nannies and other
types of in-home caregivers since 1987. We have found criminal
records on approximately 7% of the caregivers we have conducted
background checks on. The offenses have ranged from murder to
jaywalking. However, most of the convictions have been for
misdemeanor offenses rather than felonies. Most of these individuals
do not even go to jail, let alone serve time in a state prison.
Since the NCF does not include most misdemeanors, most of these
records would never be found through a NCF search. Petty theft is
the most prevalent crime we have found among the caregivers we have
screened. Most of these applicants are women. According to a
recent study, females accounted for 6.7% of all prisoners
nationwide at mid-year 2001. If only 6.7% of the prisoners in the US
are women, then numbers like 60 million to 133 million records in
the NCF become far less impressive.
largest NCF database includes data from state criminal repository
records from only ten states. Most of the state repositories include
only some misdemeanors, or none at all. Again, most caregivers
convicted of crimes have committed misdemeanors, not felonies. Many
statewide repositories do not contain records from all counties, as
the counties often fail to send records to the state repository.
There is another serious problem with the NCF -- much of the data is
stale. For example, some versions of the NCF include a "Florida
Courts database from all 67 counties." The problem is, the database
is only updated every six months, or even less frequently.
An additional problem exists. Most of the records in the NCF
databases do not include identifiers, such as Social Security
numbers or dates of birth. Therefore, if you run a NCF search on
someone with a common name, you will receive many records that have
absolutely nothing to do with your applicant. You will have to
request county criminal checks where records are reported to
determine whether the NCF records are relevant.
Reporting Act Requirements
If you decide not to hire an individual
based upon information reported in the NCF, you are compelled under
the Fair Credit Reporting Act (FCRA) to give the applicant a copy of
the report, a summary of their rights under the law, and what is
called an "adverse action letter." The applicant is then given the
right to dispute the accuracy of the information. You are then
required to verify the information. If you do not comply with these
provisions of FCRA then you subject yourself to a lawsuit by the
You also should be aware that FCRA
requires "the best possible source" be utilized when conducting a
pre-employment background check. Given the holes in the NCF that
have been discussed, a strong argument could be made that the NCF
does not meet the criteria of the "best possible source." Some
industry experts have taken the position that the NCF does
comply with FCRA when used simply as a pre-screening tool to
"generate leads." Our company does not offer the NCF as a
stand-alone product, but only in conjunction with a county or state
criminal records search, as we do not want our clients to have a
false sense of security based upon a flawed criminal search.
The Bottom Line
The NCF does throw out a geographically
"wider net" than a county criminal check. While the net is wide, the
holes are so large that great white sharks can swim through them.
There is no substitute for a tightly focused county criminal court
search conducted in the locations where the individual has lived. A
county criminal check should be requested in conjunction with a
Social Security number verification, which identifies the counties
that should be searched for criminal records. The net is smaller,
but it is tightly woven and thrown into the place in the water where
the fish are likely to be biting.
© 2005 Lynn Peterson all rights reserved.