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Performing criminal background checks on the people who will be working with the children in your care is not only a standard of the American Camp Association (ACA); it is your obligation to the families that have entrusted you with their kids. As you consider what your organization will do to check potential staff and volunteers, you may have a number of questions, such as:
- What does the law in my state require me to do regarding background checks?
- What kind of criminal background check should I perform?
- What information is included in a criminal background check, and what might be "left out"?
- Are those online $5.00 background checks any good?
- Are fingerprint-based checks better than name-based checks?
- If I hire a company to help me, how do I know how to choose the one that will give me the most complete and accurate information?
ACA has been actively involved in providing camps and other youth development programs with access to the best available criminal background checks for a reasonable cost and with a short processing time ever since The National Child Protection Act of 1993 was signed into law. The bill, nicknamed "Oprah's Bill" for supporter Oprah Winfrey, included a provision to create the first-ever "nationwide database of all indictments and convictions of child abuse and sex offense charges, violent crimes, arson, and felony drug charges." It specifically required all states to report crime records to this database. The bill also included language to allow organizations who employ a "childcare provider" to ask a state agency to check this database for all job applicants. Not to be minimalized, it also provided protection to job applicants by establishing that reports could only be released on applicants who provided written permission for a background check to be made, and allowed for background check results to be appealed.
Sadly, as an unfunded mandate to the states, very little progress has been made to make any of the provisions in the bill a reality, with the notable exception of a database of registered sex offenders in each state. The Dru Sjodin National Sex Offender Public Website, coordinated by the US Department of Justice, provides free online name-based searchability of all the sex offender registries in the country. While certainly not the complete database called for in Oprah's Bill, it is such an important tool that the American Camp Association has made an annual check of this database for all paid, volunteer, and contracted staff a mandatory standard for all ACA-Accredited Camps.
Disappointed by the lack of movement on Oprah's Bill, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act in 2003. The PROTECT Act is a multifaceted, expansive law that focuses on the prevention of the exploitation of children. Of most interest to ACA is a small provision for a pilot program that gives selected youth-serving organizations access to fingerprint-based criminal records checks of the Federal Bureau of Investigation (FBI) database for volunteers (excludes paid staff) at a reasonable cost and with a very short turn-around time — regardless of any CampLinebarriers to access in their state law. ACA was accepted into the pilot program in July 2006. Since then, ACA and a number of partners have been advocating to make the pilot program permanent and to extend the checks to paid staff as well as volunteers. (For more information on this advocacy effort, read the information about the Child Protection Improvements Act online at ACA's Web site.) Any ACA camp is eligible to participate in the pilot program (called PROTECTScreen) at any time, whether you need one check done, or thousands. Visit ACA's Web site for more information on this program.
While access to the FBI database is a step in the right direction, it is still not a complete database. Contrary to the databases shown on popular crime programs on television, there is not one all-inclusive database in this country that includes all criminal records of every offender in every state. So, how do you decide what kind of criminal background check to perform on your staff and volunteers? The answer is complex. Use the information provided below to help you sift through the choices and make the decision that is best for your organization.
First and foremost, at a minimum you must adhere to any state laws governing criminal background checks and your program. ACA maintains a complete list of these state laws online at ACA's Web site. State laws change periodically, so ACA recommends you revisit your state laws annually to verify what is required at a minimum by your state.
A criminal background check is a process of looking into the history of an individual to determine whether they have a criminal record.
What Other Types of "Background Checks" Are There?
There are many different types of background checks an employer can pursue when performing pre-employment (or pre-volunteerism) screening. In addition to criminal background checks, other types of common checks are:
- Driving histories
- Education records / academic degree verification
- Credit checks
- Drug tests (drug tests to check candidates for current substance abuse are legal)
- Workers' compensation reports
Types of Criminal Background Checks
A wide range of types of criminal background checks are available today, each with strengths and weaknesses. Because there is no single criminal database in this country that includes every criminal record, no single background check is "perfect."
Options for how the individual is being identified:
- Name-based check: A name-based check uses a person's name and sometimes their Social Security number to match any possible criminal records. Name-based checks have inherent weaknesses:
- The individual could provide a false name and Social Security number. In fact, according to the National Mentoring Partnership, over 1 percent of the 45 million individuals in the FBI criminal database have used over 100 aliases and false Social Security numbers.
- Females may have two or more different last names if they have been married.
- Criminal databases can have mistakes in the spelling of an individual's name and other relevant information.
- Because of common names, "false positives" may arise — in other words, a check might come back with criminal records, but they actually belong to another individual with the same or similar name.
- Fingerprint-based check: A fingerprint-based check uses fingerprints taken from an individual to identify that individual and to match any possible criminal records. Fingerprints are a form of "biometric-based" identification. That is, fingerprints are unique to the biology of every individual. Currently, the only way to assure the identity of an individual is through fingerprinting.
- Other biometric-based checks: While the technology is not widely available, there are other ways (in addition to fingerprints) to determine the identity of an individual in order to match any possible criminal records. These methods will increase in the future and include methods such as retinal scans and DNA extraction.
Options for the types of records/databases that can be checked:
- FBI: The FBI maintains the most complete criminal database in the United States. It contains over 200 million arrest and conviction records concerning over 45 million individuals. All records are fingerprint-based. The database contains all federal crimes plus approximately 70 – 90 percent of each state's criminal databases. Low-level misdemeanors, driving citations, and DUIs make up the portion of state records that are generally not present in the FBI database.
- While it would seem reasonable that all youth-serving organizations should have access to the FBI database to perform checks on people who are working with children, thirty-seven states specifically bar access. Because states are the gatekeepers for criminal background information, state law determines your access. ACA is working with other partners to change this situation. The Child Protection Improvements Act mentioned above is our effort to provide you with access. More information is available online at ACA's Web site.
- State Background Checks: These checks include only the crimes committed within that state. These background checks are obtained through a state agency (the agency varies from state to state). Some states allow fingerprint-based checks, some only allow name-based checks, and some offer both types for different fees. Most state checks also include arrests, but a few include only convictions.
- County/Local Checks: These checks include only the crimes committed within a local jurisdiction. Background checks of a county or local jurisdiction are obtained through the local police or sheriff's department.
- Private Vendor Checks/Databases: There are dozens of private vendors that advertise criminal background check services. (Visit ACA's Web site for a list of ACA Business Affiliates that offer these services.) Private background checks are generally name-based. There are two basic methods that these private vendors use for providing background checks:
- Some vendors search county record repositories for the county of residence for the past three to five years (sometimes longer).
- Other vendors maintain databases of criminal records, often searchable online. Some of these vendors advertise their background checks as national in scope. However, most often, these databases actually only provide "multi-state" information. These vendors buy their criminal data from the states. But, many states have strong privacy laws, so they do not sell any criminal data. Other states sell only a portion of their data (for example, parole records — but not the full conviction or arrest files).
- Driver's License Check: This check would catch any tickets, citations, or convictions related to poor driving, including DUIs.
- State Sex Offender Registries: Most states have sex offender registries available online. However, states do not share the same criteria of what constitutes a "sex offender."
(Any crimes that would cause an individual to be on a sex offender registry should show up in a state or FBI criminal background check.)
- US Department of Justice, National Sex Offender Public Website: As mentioned earlier, The Dru Sjodin National Sex Offender Public Website, coordinated by the US Department of Justice, provides free online name-based searchability of all the sex offender registries in the country.
- Child Abuse Registries: A few states will allow organizations that work with children to check an individual against their child abuse registry. These databases often include complaints of abuse that never result in arrest or prosecution and so would not be in a criminal database.
Special note on the records/databases that are checked:
One of the limitations of criminal databases is that often an arrest will be recorded, but the courts or police do not update that arrest record with the ultimate result. Without that update, it is not known if the individual was convicted, had the charges dropped, or was found not guilty. These incomplete records are often called "open arrests." Some types of background checks only access convictions. When that happens, the check misses any of those open arrests.
Choosing the Type of Check You Will Perform
Most likely you have seen the advertisements for online $5.00 background checks. Perhaps you've even been contacted by a company offering to complete the entire process for you. Prior to deciding what type of check you will perform, and whether you will hire a firm to help you, ACA suggests you consider the following questions:
In most countries, the records are tied to the home/permanent address so you do not have to be as concerned about staff living at home and school. If they are living or working in a country other than their home country, you should ask for a check from their home country. Be sure you ask for English translation or review of international checks. You should also consider running a national check in the US on returning international staff who have a Social Security number.
- What kind of checks, if any, does your state require you to perform?
If checks are required by your state, what kind? Are those checks to be performed on in-state residents only? State requirements range from biometric fingerprint checks to checks against sexual predator registry lists or no checks at all. Some states only require that employees who are residents of that state be checked. Be sure you know what's required by your state and comply with that requirement. It's wise to also look closely at the information you will receive from your state and decide if it fully meets your needs. Many organizations are conducting a state biometric check and adding an additional type of check because of the areas from which they draw staff. To verify your state's requirements, ACA maintains a complete list of these state laws online at ACA's Web site.
- What kind of checks, if any, does your insurance company require you to perform?
If background checks are required — and chances are, they are — specifically what kind? Your insurance company may require you to run checks on your staff regardless of whether your state requires it or not. Insurance companies are usually asking for a commercial check and may recommend specific companies for you to use. Check with your insurance company to identify the elements they want to be included in the check.
- Do you employ year round staff? Do you employ seasonal staff? Does any of your staff live in two places during the year (for example, at home and at school)?
Seasonal staff are a challenge to screen because they can live in more than one location during a particular time, and those locations could vary from year to year. Therefore, you need to consider all of those locations in the screening process.
- Do any of your staff live out of your geographic area? Do they live out of your state?
Staff who are recruited from other states need to be screened in those locations.
- Does any of your staff live out of the country? How many international staff are returning and have a Social Security number?
Staff living out of the country may or may not present a challenge in the screening process. If you are working with a placement agency to hire your international staff, be sure to discuss the type of background check they will perform in each country. Ask them if they are conducting the most comprehensive police check available.
- Do you employ any staff members that are under 18 years of age?
The age of the staff member often determines the information you can expect to receive. Most, but not all, records are sealed for staff less than 18 years of age.
- How many staff do you employ?
The number of staff you employ in each different category (year round, seasonal, out of state, out of country, underage) will impact your decisions financially. If you are conducting commercial checks on large numbers of staff, look closely at the various choices available when making decisions about the most complete and cost effective way to proceed. Also look at the elements provided by the different commercial check options and compare them to each category of staff you employ.
- Ask any prospective company you are thinking of hiring how long it will take to get a background check report.
When the season is short, it's important for you to receive your background check reports in a timely fashion. Ask how much time a report process is likely to require.
- Why can't I just check the national sex offender database? The Dru Sjodin National Sex Offender Public Website, coordinated by the US Department of Justice, only provides online name-based searchability of all of the sex offender registries in the country. Since it is name-based only, there is no way to verify that the name you check does belong to that person. And remember, it only contains registered sex offenders, not individuals who have been convicted of any other type of crime.
- Do I need to conduct a criminal background check on each returning staff member every year?
You have no way of really knowing what the staff member has been doing since your season ended unless you do a new check. While the ACA standard HR-4B requires a criminal background check for new staff over the age of 18, you should consider doing this check on both new and renewing staff every year. And as mentioned before, be sure you know what your state law and insurance company require regarding returning staff.
What to Do With the Information Received
Just doing a check is not enough. You need to have a plan of what you will do if you receive a report that indicates a criminal history. Some states have laws that mandate who you can and cannot hire (that is, they will tell you what crimes are unacceptable and will not allow you to hire anyone with that record). Some states will filter information based on their predetermined set of criteria for your employment classification. For other checks, including checks performed by commercial firms, you may get back an abundance of information that might not seem relevant — and is often hard to understand. You need to have an organizational plan on what to do with the information before you receive it. Some organizations call this their "screening threshold." Many organizations wait to think about the hiring process until they get back negative information. Emotions may rule at that point, and if so, consistency in the process is hard to attain. Set your thresholds now. Discuss what your organization is willing to tolerate in past history. For example, would you hire someone with a drug-related misdemeanor from seven years ago? By setting the thresholds before screening, you can assure fairness in your hiring process. Many organizations have asked for assistance in setting their thresholds. Check with your state law first. Then consider that the partners in the PROTECTScreen pilot have identified the following as cause for concern with staff working with youth: felony, drug conviction, crimes against children, acts of cruelty or violence, sexually-related crime, cruelty to animals, and other acts specific to a position such as embezzlement. Then discuss with your attorney to develop your own thresholds.
Need More Help?
This brief article has attempted to introduce you to the intricacies of criminal background checking in America. Since this is such a complex topic, ACA has created an online course to help. Criminal Background Checks — Dispelling the Myths and Confronting the Realities is available online: $20 for ACA Members, and $55 for non-Members. The following is a review of the other resources mentioned in this article:
- Online database of all state laws regarding criminal background checks related to camp programs.
- US Department of Justice National Sex Offender Public Website
- National Child Protection Act of 1993 — "Oprah's Bill"
- PROTECT Act of 2003
- PROTECT Act pilot program that allows ACA camps fingerprint-based criminal background checks of the FBI Database — PROTECTScreen
- Child Protection Improvements Act (in Congress Now)
- ACA Business Affiliates — Criminal Background Checks