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Employers May Get Access to Applicantsâ€TM Minor ‘Offensesâ€TM

by Michelle Chen

The FBI is looking to make people's criminal records more extensive and more accessible to private employers. Critics say that increased exposure of people's criminal histories will unfairly foreclose job opportunities.

Nov. 17, 2006 – The FBI wants to start including "non-serious offenses" on criminal-history reports to employers – a move some say could unduly taint people’s job prospects and spread misinformation.

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If the proposal goes into effect, many employers using the FBI’s system could discover a job applicant had been convicted for drinking in public, or had been arrested for vagrancy as a teenager, among other offenses.

"This new policy is bound to destroy a lot people's lives," said Roberta Meyers-Peeples with the Legal Action Center, which helps people with criminal records rejoin the workforce.

In joint comments filed with the FBI, labor and civil-liberties groups warned that the plan, coupled with other efforts to expand the criminal-data system, would foreclose employment opportunities for an untold number of people, disproportionately impact people of color, and invite the abuse of sensitive information.

Under the proposal, which has not yet been finalized, the FBI would report minor offenses on "rap sheets" – records used by employers for screening job and licensing applicants and employees. These offenses – which can range from traffic violations to urinating in public – would be reported through the FBI’s nationwide fingerprint databank.

Currently, the Bureau essentially tracks only information on "severe and/or significant" offenses, mainly major misdemeanors and felonies. Now, the FBI proposes to include virtually all "finger-printable offenses" in the database, which feeds into a national crime-information system that is available to more than 90,000 law-enforcement agencies and other authorized users. States set their own policies on what offenses warrant fingerprinting.

Under the proposal, offenses ranging from traffic violations to urinating in public could be reported through the FBI’s nationwide fingerprint databank.

Workers’ and privacy-rights advocates say that the expansion of rap sheets fits into a widening scheme to promote "security" – by exposing people’s personal histories to private interests.

Past offenses, new stigmas

Noting "the stigma associated with having a criminal record, no matter how minor it is," Meyers-Peeples predicted that people with prior minor convictions could face even higher barriers to employment."

A 2003 study of employers in the Los Angeles area by the liberal think tank Urban Institute found that over 40 percent of employers said they would "probably" or "definitely" not hire an ex-offender.

Groups opposed to the proposal say it would also push many people of color further away from the mainstream employment market. According to the FBI’s report on crime in 2005, for low-level offenses like "disorderly conduct" and "loitering," blacks made up more than 30 percent of arrests in 2005, but only about 13 percent of the general population.

"We’re concerned both about error and about discrimination at every step in the criminal-justice process," said Peter Zamora, an attorney with the Latino advocacy group Mexican American Legal Defense and Educational Fund. "The risks to this rule, or the damage caused to minorities, just really outweigh the benefit to employers."

Civil-rights and labor groups warn of a pattern of crowding out privacy in the name of public safety.

The FBI refused to comment about the plan, pending the analysis of input submitted during the public-comment period, which ended earlier this month.

The workers’ rights group National Employment Law Center (NELP) and other groups say that instead of broadening the scope of the criminal-data system and the public’s access to it, the government should more tightly regulate how employers use rap sheets. That includes ensuring that people have a chance to explain their records before their applications are rejected.

 

"We’re not saying that if there’s a legitimate reason to conduct a background check, that they can’t conduct a background check," said Maurice Emsellem, a project director with NELP. "We’re saying that there has to be some basic fairness figured into the system."

 

Personal privacy, public safety

There are about 1,200 statutes nationwide permitting different groups and businesses to access FBI data through state governments, according to the US attorney general’s office. In recent years, Congress has passed laws allowing some employers – such as nursing homes, banking institutions, childcare providers and schools – to more directly initiate background checks with the FBI, bypassing much of the state-level bureaucracy.

In a June report on criminal-background checks, the attorney general’s office recommended making the FBI’s databank even more user-friendly: through policies granting access to all private employers and third-party screening firms, which employers often use to investigate job applicants’ personal and financial histories.

Information on the final outcome of a case – including whether an arrest led to an actual conviction – is missing for about half of the records.

But as the federal government moves to collect and disseminate more information, the attorney general’s office acknowledged that the existing system is riddled with quality issues, from substandard fingerprint imaging to incomplete records. For instance, information on the final outcome of a case – including whether an arrest led to an actual conviction – is missing for about half of the records.

The report conceded that while the FBI database is one of the more comprehensive resources for criminal-background checks, "no single source exists that provides complete and up-to-date information about a person’s criminal history."

Still, some organizations, especially those dealing with children, see criminal-background checks as crucial safeguards. SafetyNET, for example, a pilot program launched by Congress in 2003, gives youth-mentoring organizations direct access to FBI rap sheets. Though SafetyNET is intended for screening volunteer applicants, participating organizations can choose to submit fingerprints for prospective employees as well. Roughly one-in-fifteen applicant screenings have turned up criminal records, according to the Mentor/National Mentoring Partnership, one of the organizations spearheading the initiative.

Margo Pedroso, vice president of public policy for Mentor, said the expansion of rap sheets could help program staff "get a more complete picture of a volunteer or an employee’s past." She noted that a slew of traffic violations could be just as significant as a major offense when considering an application for a position that involved driving children around.

But critics say that the more offenses show up on a rap sheet, the greater the potential for overreaction and misinterpretation.

Tena Friery, an advocate with the Privacy Rights Clearinghouse, a California-based consumer-rights group, said a frequent concern cited by people who contact the organization is what to do about offenses committed long ago that may haunt their current employment prospects.

"Certainly employers have a right to know things that are relevant to the job," she said, "but the question is, how far back does the inquiry need to go? We’ve heard from people in their 40s and 50s who are concerned about something that happened when they were in college."

Criminal-background checks are subject to some regulation, including state and federal consumer and civil-rights protections. Some states restrict employers from inquiring about certain types of past offenses. Many states have policies enabling courts to expunge records after a certain period to prevent a criminal background from permanently tainting someone’s record – as is often done for young convicts when they reach legal adulthood.

But NELP, which tracks policies governing criminal-background checks across the country, said such regulations are inadequate. Even if a record is expunged long after the conviction, for example, the FBI’s databank might not receive an update to the old records, leaving it up to the individual to petition to change the rap sheet.

The Electronic Privacy Information Center, a research and advocacy group, said the expansion of background checks continues a pattern of crowding out privacy in the name of public safety.

Executive Director Marc Rotenberg noted that while authorized employers and government agencies can have "real-time" access to a person’s criminal history, the individual must typically file a formal petition with the FBI to see the same information.

Rotenberg said, "It’s remarkable that more than 90,000 law-enforcement agencies can see whether or not you have a record on the FBI’s crime-information database, but you can’t."

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The NewStandard ceased publishing on April 27, 2007.


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Michelle Chen is a staff journalist.

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