Why Do Employers Still Play Cat & Mouse with Criminal Background Check Results?
A recent mistake found on a client’s job-related criminal background report highlights how some Illinois employers still aren’t providing these reports to job applicants and employees, even though existing state and federal laws require them to do so.
Criminal Background Reports Aren’t Foolproof
There’s a simple reason why employers are required to provide individuals with a copy of their criminal background report: criminal background reports are not free from errors. Any criminal background check is susceptible to human or machine error.
Even a Fingerprint Background is Not Immune from Error
G recently received a job offer from the City of Chicago. Like most job offers today, the offer was contingent on “passing” a criminal background check. G wasn’t concerned about his passing the background check. He only had a handful of arrests on his record and had never been convicted of a crime. Because he was seeking a city job, he was required to undergo a fingerprint-based criminal background check.
Unlike a public records criminal background check, which relies solely on publicly-searchable records (using someone’s name and birth date), a fingerprint background check tracks someone’s criminal history through their fingerprints.
The benefit of using fingerprints is that it can easily locate someone’s criminal history even if an alias was used or the person’s name was misspelled.
Much to G’s surprise, when his background report came back he was informed that he’d failed to disclose a conviction for prostitution. G was puzzled. He told the HR department that he’d never been convicted of prostitution, let alone sentenced to prison as the record reflected. The city did not give G a copy of his background report, despite his having asked for additional information to resolve the discrepancy.
Due to the prostitution conviction, the city’s hiring process came to a standstill. It was not until G decided to get fingerprinted that he obtained a copy of his Illinois State Police (ISP) criminal history report.
G discovered that the prostitution case belonged to a woman he did not know. How the case ended up on his ISP report is a mystery. Had the city provided G with a copy of his background report he could have run the case number through the Cook County Clerk’s criminal case index and alerted the city of the error.
Employers Legally Bound to Provide Criminal Background Reports to Job Applicants/Employees
Depending on how an employer conducts a criminal background check, there are different laws that require employers to provide a copy of the background report to job candidates or employees.
If an employer conducts a public records background check, the Fair Credit Report Act of 1970 (FCRA) mandates that employers provide a copy of the report to the job applicant/employee so s/he can verify the accuracy of the report.
If an employer conducts a fingerprint background check through the ISP’s criminal database, employers are contractually mandated (by the ISP) to give a copy of the report to the individual. Conversely, if an employer runs the applicant’s/employee’s prints through the FBI’s criminal database, the employer is only required to provide a copy of the FBI’s report if the individual requests it.
Compliance with Illinois Human Rights Act’s Criminal Record Protections Spotty at Best
Since 2021, the Illinois Human Rights Act (IHRA) mandates that Illinois employers provide a copy of the applicant/employee’s criminal background report in the event it wants to withdraw a job offer or terminate an employee due to a criminal (conviction) record. 775 ILCS 5/2-103.1 This requirement went into effect on March 23, 2021 – long enough for employers to get into compliance.
Unfortunately, anecdotal evidence reflects that the IHRA’s latest requirement is being routinely ignored. Let’s face it, employers who don’t want to hire someone with a criminal background would rather not have to tell that person the real reason they’re withdrawing the job offer. They’d rather “ghost” you.
It is disheartening how often employers do change course when they discover that someone may have made a mistake earlier in life. Think of how many people commit a crime but are never charged or prosecuted.
Even when someone is arrested and convicted of a crime, our legal system does not insure that individuals receive “their day in court” to prove their innocence. Rather, the U.S. criminal justice system places untold pressure on people to plead guilty, without regard to their guilty or innocence. As a consequence, innocent people do go to prison.
This is a well-documented fact. Currently, Cook County holds the record for the most exonerations (on a county-wide basis) in the United States.
Don’t Let the Cat Get Your Tongue, The Law is on Your Side
Regardless of how your criminal background check is conducted – public record search or fingerprint – you are entitled to a copy of your criminal background report. As long as employers think they can “get away” with ignoring the FCRA or the IHRA, they will. It’s time to insist that employers start playing by the rules.