In October, the Consumer Financial Protection Bureau (CFPB) of the US released its report into the background screening industry, with a particular focus on the use of criminal background checks in employment.
CVCheck’s General Counsel, Craig Sharp, explains why a standardised approach to criminal history checking in ANZ offers employers far greater certainty and clarity than the fractured jurisdiction in the US.
Background screening and criminal check services
According to the informative report, approximately 95% of US employers conduct background screening, with 89% of companies carrying out some sort of criminal history check in the recruitment process. The combined estimated revenue of the industry is US$3.2bn, spread across 1,954 background screening companies in the country. The revenue of the industry is largely driven by credit check (46.4%) and criminal record check services (36.5%).
In Australia and New Zealand, the smaller size of the workforce(s) means the size of the industry is also smaller. In Australia for instance, there are 74 agencies accredited by the Australian Criminal Intelligence Agency (ACIC) to provide criminal history checks to individuals or employers, with industry revenue currently being unknown.
Due to the respective Privacy Acts in the two countries, credit checks, which are the biggest drivers of industry revenue in the US, are not used in Australia and are only used for certain roles in New Zealand. There are a range of other checks that form an important, albeit lesser, part of the services offered by the background screening industry in the region, which include visa (work entitlement) checks, financial and business checks, qualification checks and traffic checks.
In relation to criminal history checking, the differences are starker. In short, Australian employers remain blissfully free of many of the problems and challenges highlighted by the CFPB report.
There’s no international standardised method in screening
The CFPB report explores the services advertised as criminal history checks in the US, highlighting the lack of standardised method in screening.
US: The lack of unity: local vs national level
Screening service providers in the US each have their own preferred source of data, unlike in Australia, where accredited background screening companies verify information from the same official sources.
Some US providers use official court repositories from relevant jurisdiction; others rely on private databases of public criminal records information, which may not even be national in scope, but state or county-specific.
As information is coming from different sources, processes vary widely, from different ID used to run the check, to various ways to determine whether a record in a database matches the applicant.
The discrepancies between background screening companies in the US are a result of the fractured record-keeping process across the country. Due to the inconsistent systems across jurisdictions for reporting criminal records, it’s difficult to access complete records or records that use consistent terminology.
Criminal history information about an individual case may be included in many databases. Primary sources include the federal and state courts, the Federal Bureau of Investigation (FBI) databases, state repositories, and law enforcement agencies. In addition, the way jurisdictions keep records and make them available to the public vary greatly.
Faced with this multitude of sources, background screening companies create, use, and sell private databases that collect public records from law enforcement agencies, state courts, corrections offices, and state criminal record repositories where available. This can compound certain problems when duplication can result in multiple listings of the same convictions or arrests, or when information is expunged or sealed (equivalent to spent conviction rules in Australia or New Zealand).
Australia and New Zealand: The centralised and standardised approach to screening
In contrast, Australia or New Zealand have a single, centralised and standardised process for criminal record checking, with consistent rules in relation to the disclosure of information.
In Australia, criminal history checks are officially known as National Coordinated Criminal History Checks and are delivered through the National Police Checking Service (NPCS), which is managed by ACIC. All checks, whether ordered through an accredited background screening company, or through a state or federal police agency, are delivered through NPCS.
The NPCS operates a single name-match database. The same algorithm is always used to match against the full name and previous names of the applicant. If the algorithm indicates a “possible name match”, the check will be referred to the police agency that holds the relevant record, regardless of which screening company (or police agency) ordered the check.
The application of state or territory-based spent conviction rules means that in some cases, what information is disclosed will vary depending on the purpose for which a check is sought and, in some circumstances, an old conviction in one state or territory will be treated differently to an equivalent conviction in another.
However, because of the central role played by ACIC and the NPCS, both employers and candidates should be confident that choosing one accredited background screening company over another (or choosing a federal or state police agency) will not change the fundamental check result that is obtained.
In New Zealand, the Ministry of Justice (MoJ) has an even more centralised and standardised process in place. Without the added complication of a federal system, the MoJ not only ensures a standardised process and result for NZ criminal history checks but promotes three tiers of deliveries: standard, priority or express.
The legal advantage of a centralised approach to screening
As a result of the centralised processes, employers and candidates in Australia or New Zealand can be confident that they’ll receive a standard check that is informative for employers and fair to applicants. The CFPB report makes clear that this confidence is not enjoyed by their counterparts in the US.