September 26, 2019 at 5:00 am ET
Business in the United States is booming. Unemployment remains extremely low and employers are looking to fill more jobs. In this environment, hiring the best candidate in a timely manner is imperative to employers. The cost and time associated with onboarding a new hire is valuable – both to the employer and potential employee. Not to mention, if the hiring process takes too long, employers may lose the best talent to the competition. It’s critical to get it right the first time.
Ensuring workplace safety is the primary reason 96 percent of employers conduct background checks, according to a survey conducted by HR.com, but more than half of employers also conduct checks to improve the quality of their hires. For employers and employees, fit is paramount. It’s clear that employers use background checks to help them find the ideal candidate, and speed is essential.
The accuracy and timeliness of any background check is dependent on access to personal identifiers like complete date of birth. One may assume that this information would be available to background screening companies, especially since the subject of the check already provided them with this information. However, that is not always the case. DOBs are systemically unavailable in the federal record keeping system known as PACER, and an increasing number of state and local courts are also redacting this information.
This makes it extraordinarily difficult for professional background screeners or consumer reporting agencies to conclusively determine whether or not a criminal record belongs to a particular individual, especially when the individual has a somewhat common name. Imagine how many Jane Does are living in the U.S. Some of them may have committed federal crimes like drug trafficking or identity theft, while many others are law-abiding citizens simply looking for a job. Without identifiers like DOB, how could you determine which Jane Doe a criminal record belonged to? False negatives can arise where a CRA does not report criminal record information because they cannot positively link the record to the consumer when the only identifier available is the name, potentially compromising the safety and security of others.
While PACER was originally intended for internal court use that would not require DOB, the reality is that it is a vital source for CRAs conducting criminal record checks and including identifiers is immensely important. At the state and local level, redacting these identifiers is often justified by citing privacy concerns, but there are tremendous, unintended consequences. Federal crimes include weapons offenses, terrorist threats, kidnapping, embezzlement, wire fraud, bomb threats, and financial and internet crimes, and the inability to properly identify criminal records puts the safety of Americans at risk. Not only that, it can cause unnecessary delays in the hiring process, which harms employers and jobseekers alike.
Protecting privacy is incredibly important, but 47 of the 48 states with data breach notification legislation do not classify DOB as an identifier that, if breached, would require notification. Employers often choose to utilize CRAs when conducting background checks because they are trained to properly handle personally identifiable information and are subject to strict regulations under the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act of 2003. They are also regulated extensively by state and local rules pertaining to data security and privacy laws.
To ensure employers can continue hiring the best candidates and jobseekers can continue to be placed in the right jobs, we must remedy this dilemma. As the House Judiciary Committee holds their hearing on the public’s right of access to the courts, they should consider the simple fix to this dilemma: Congress should direct the Judicial Conference to ensure access to dates of birth in PACER.
Melissa Sorenson is the executive director of the Professional Background Screening Association
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