Congress should ensure background screens truly protect the public
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With a newly elected president and the 115th Congress being sworn in, there has been an increasingly intense focus on regulations and how they impact our government and economy. As policymakers review our country’s regulatory framework, it’s is crucial they view things through a lens that also protects public safety. FBI studies estimate nearly 355,000 businesses will experience a workplace violence episode in any given year, and the U.S. Department of Labor estimates that the average cost of a bad hiring decision can equal 30 percent of the first year’s potential earnings. Despite these facts, too often well-intended but misguided polices severely hamper the ability to conduct thorough background screenings that enable employers and landlords to maintain the safety of the places where we work and live.

In recent years, we’ve seen states and localities across the country passing their own laws governing background screening, creating a patchwork of regulations that can make the jobs of those charged with conducting background screenings more difficult, potentially putting public safety at risk. Whether it is Congress passing legislation or agencies considering new rules, they should do it in a way that will keep the public safe and secure in their homes and at work and through legislation that permits the use of highly regulated, professional screeners whose very process was designed around consumer protection. This will be most important when considering laws and regulations concerning transportation network companies (TNCs) and “ban the box”.

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Transportation Network Companies (TNCs). As TNCs like Uber and Lyft have gained popularity across the country, some states and cities have or are attempting to require fingerprint-based background checks for all drivers. TNCs absolutely need to ensure the safety of passengers by conducting background checks on drivers, but the fingerprint-based checks these laws would force them to utilize potentially omit critical information about a person’s criminal history.

A recent report from the U.S. Government Accountability Office found significant gaps in the FBI database that fingerprint checks rely on, and the Department of Justice has stated that users may not want to rely on the FBI database alone to obtain the most complete and up-to-date information. TNCs must have access to professional screening services that have the ability to search multiple sources rather than mandating the use of the FBI database, which is often missing critical information.

Ban the Box. Efforts to reintegrate people with criminal histories back into society have resulted in “Ban the Box” campaigns across the United States, which seek to implement laws that prohibit employers from asking applicants about their criminal history. In 2015, the White House echoed this sentiment with the “Fair Chance Pledge.”

While the intent of these laws is commendable and should be supported, they exist today as a patchwork of fragmented and varying legislation at the state and local level, causing inconsistencies for applicants and employers. These conflicting regulations have led to numerous instances where a single employer operating at the national level is required to present applicants for the same position with different forms, timeframes and processes. Additionally, these regulations often impose numerous requirements which overlap and conflict with requirements of the Fair Credit Reporting Act (FCRA).

Regardless of the path Congress or local leaders choose to follow, they must be cognizant of the unintended disparate impacts on communities of ethnic diversity. After the “Ban the Box” regulations in New York and New Jersey took effect, for example, a Princeton/University of Michigan study noted, “employers became much less likely to call back any apparently black applicant.”

Both the policy and these studies are recent, so many of the impacts are yet to be understood. As policymakers consider “Ban the Box” regulations, they should look to identify solutions that promote employment of reformed citizens without incurring a disparate impact on communities of ethnic diversity.

Professional screening companies operate in a controlled, regulated and transparent process pursuant to the Fair Credit Reporting Act (FCRA). Background checks are only conducted with the applicant's written consent. Further, applicants are also protected by state consumer protection and privacy laws. Professional screening companies must follow the FCRAs' "reasonable procedures to assure maximum possible accuracy" of the information concerning consumer reports that are used for employment and tenant screening. Consumers have a right under the FCRA to challenge the information in a background check in a well-defined dispute resolution process, at no cost to the applicant.

As Congress proceeds, they must be mindful of protecting the safety of the public, and they can do that by working on policies that allow professional background screeners to properly do their jobs. By ensuring that those entrusted with background screening are not hampered by onerous and conflicting regulations, the public can feel safe in the workplace and at home.

Melissa Sorenson is the Executive Director of the National Association of Professional Background Screeners (NAPBS)


The views expressed by this author are their own and are not the views of The Hill.