The Expert Podcast

So when is a background check not a background check? If you are considering looking into the criminal history of a subject for the purposes of employment, maybe renting real estate or an apartment, or maybe doing a business deal, sometimes knowing about a person's criminal past might be tempting. However, you need to be aware of the laws regarding obtaining that information, even if it's factual, and using it. Here's an example where a private investigator was hired by a prospective employer to look at an applicant for a job. The background check agency or the investigator looked up and found a criminal history of the person and provided that factual information to the employer. The employer, once they received it, declined the job offer to that applicant. The applicant discovered this and sued both the employer and the background check agency for the use of that information. What's the basis for that? Well, in this particular case, this was in the state of California.

In the state of California, a conviction of a crime more than seven years ago is not allowed to be used for the purposes of employment or hiring. So even providing that information to the employer was not proper, even if the employer got it and said, "I'm still going to offer them a job." Just the employer knowing about it would have been prejudicial to that applicant. Now, even if you are using a background check for other purposes besides employment, and you might say, "Look, this is not what I'm doing," it doesn't matter. There are many other specific examples in different states and at the federal level where a criminal background check or knowledge of criminal background history may not be usable in making certain decisions. Employment is one; many times, renting an apartment is something that has limitations on it. You may not be able to use credit in all scenarios. In some cases, insurance companies will use background checks before they issue insurance policies, but that may not be usable.

So if you are considering using a background check for criminal records or activities, you want to make sure that you get good legal advice about when, where, and how you can use that. If you are a private investigator and you're giving out criminal records to third parties, even if you say, "Look, you have to use it in the right way" or "You have a client agreement that says you can only use it for legal purposes," you may want to find out how that person is using it so that it's proper. At the worst-case scenario, you advise them. A lot of clients may not know that they can't use criminal records for certain purposes; they might just think, "I can use it."

Now, if you are a company who wants to know about certain criminal backgrounds and you want to make sure you get good information, you may want to do the search yourself because third parties, not knowing what you're using it for, might not give you all the information. Part of the reason is there's a lot of ambiguity depending on how you do criminal background checks. You may find incorrect information. For example, if your subject's name is Joe Schmoe and you find a criminal record for Joe Schmoe, it might be a different Joe Schmoe. It might be somebody with the same name who even lived in the same city, or it might be something where there was an arrest but not a prosecution. Many of the background check sources are just electronic databases that aren't the original source.

Now, if you go directly to the government agency, the police department, the prosecutor, or the courthouse and you find the records there, now you know that those are correct records. A lot of the electronic third-party records are cheap — pay 10 bucks, 15 bucks — but they may not be 100% accurate. That's part of the reason these laws are in place. So using a background check is important to know how and where you use that information and the source of it. A lot of these online background checkers or data checkers don't have 100% information, and they don't also get records from every jurisdiction. They might be missing something. If it's important to get it, you may find that they don't check certain states because they're too hard or too expensive.

So making sure you understand how the background check is being done is as important as getting it done because they're not all created equal. Some are just an electronic, basically a Google search for that person, while some are very in-depth, original source searches that give you proper information.