Some clients send their employees to work on their client’s premises. This happens most frequently with defense contractors who send their employees to government agencies. Typically, the government agency will be able to do a fingerprint record search. Then, our clients are told they have to remove their employee because the FBI fingerprint record search came back with a hit. Our client’s next question to us is “Did we miss something?” The answer is no. Here is why.
Anybody can be arrested for almost anything. When that happens, the police are of course very proficient at taking fingerprints and sending to the FBI. The individual was arrested. BUT, there was no disposition of the case. The District Attorney didn’t file any action against the individual. Thus there is no criminal conviction in public records, which is where consumer reporting agencies conduct the investigation.
Why do we highlight the difference between an arrest record and a criminal conviction? A conviction is proof beyond a reasonable doubt that the individual committed the violation. But, as mentioned earlier, anyone can be arrested for almost anything without an ultimate disposition occurring i.e. a criminal conviction. An employer normally should not be able to use such information in a hiring decision unless they perform additional investigative procedures that comply with EEOC regulations. Using arrest records to make an adverse hiring decision can potentially put the employer in violation of current EEOC rules and regulations.
Why is this important for employers to know? The issue of an arrest record keeping a firm’s employee off the premises of that firm’s client comes up frequently. Typically, the client of the firm providing the employee doesn’t provide any detail information behind the record. A blanket ruling is made that the firm’s employee cannot work on that firm’s client’s premises.
It is important to know that the “FBI” fingerprint database is replete with such examples where individuals are in the database with a fingerprint record but were never convicted. There is no disposition in the FBI fingerprint records.
Consumer reporting agencies review public records when searching for criminal convictions. Typically arrest records are not revealed so as to comply with FCRA and EEOC rules and regulations. However, if your firm provides its employees to clients who will perform a fingerprint search of the FBI fingerprint database, it should consider obtaining an Identity History Summary Check on that individual. This is the only way your firm can avoid a situation where your firm’s client removes your employee because they found a record in the FBI fingerprint database.
What can be done to remedy the situation? For a fee, the FBI can provide individuals with an Identity History Summary—often referred to as a criminal history record or a “rap sheet”—listing certain information taken from fingerprint submissions kept by the FBI and related to arrests and, in some instances, federal employment, naturalization, or military service.
If the fingerprint submissions are related to an arrest, the Identity History Summary includes the name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known. All arrest information included in an Identity History Summary is obtained from fingerprint submissions, disposition reports, and other information submitted by authorized criminal justice agencies.
The U.S. Department of Justice Order 556-73, also known as Departmental Order, establishes rules and regulations for you to obtain a copy of your Identity History Summary for review or proof that one does not exist.
Only the individual may request a copy of your own Identity History Summary (or proof that one does not exist). Current processing time is 14-16 weeks. Allow additional time for mail delivery.
If the fingerprint submissions are related to an arrest, the Identity History Summary includes the name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known. All arrest information included in an Identity History Summary is obtained from fingerprint submissions, disposition reports, and other information submitted by authorized criminal justice agencies.
If, after reviewing his/her Identification Record, the subject thereof believes that it is incorrect or incomplete in any respect and wishes changes, corrections, or updating of the alleged deficiency, he/she should make application directly to the agency which contributed the questioned information. The subject of a record may also direct his/her challenge as to the accuracy or completeness of an entry on his/her record to the FBI, Criminal Justice Information Services Division, Attn: SCU, Mod.D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306. The FBI will then forward the challenge to the agency which submitted the data requesting that agency to verify or correct the challenged entry. Upon the receipt of an official communication directly from the agency which contributed the original information, the FBI CJIS Division will make any changes necessary in accordance with the information supplied by that agency.
