A CRAs Guide To Sex Offender Background Check Data

That’s separate from the sex offender registry report. Some states restrict reporting of older crimes; often the cutoff is seven years. If the search is ordered by an employer in a state with restrictions, old offenses will not be reported. Also, if the job candidate committed the crime in such a state, the information won't be available. However, the record will continue to exist in the sex offender registry.

There are different registries in different states, and each has its own rules for making data available. Typically you will see most of the following information:

• Name
• Any alternate names or aliases
• Address at the time of registration
• A photograph
• A list of distinguishing characteristics such as scars and tattoos

You also may discover:

• Date of birth
• Phone numbers
• Email addresses
• Residence addresses and also work and school addresses
• Fingerprints and palm prints
• The specific jurisdiction of the conviction
• Driver’s license facsimile
• Licenses numbers and descriptions of vehicles, including boats and aircraft

If the conviction can be reported under the laws of the state in question, you could also see specifics of the crime, including:

• Type of offense
• Whether misdemeanor or felony
• Date of offense
• Disposition of the case
• Date of disposition
• Sentence imposed

The NSOPW contains a disclaimer whereby the Justice Department does not guarantee the accuracy of the data on the registry. It warns users that it’s their responsibility to verify information. A person or employer who doesn’t have the resources to validate the data relies on it at their own risk. The Department recommends that users contact specific jurisdictions and local law enforcement agencies to validate the information. That has the potential to be an unreasonable amount of work for an employer. A reputable CRA can provide the information with an accuracy and completeness that an employer would be hard-pressed to achieve.

How is Sex Offender Background Data Used?

Sex offender data is often used by individuals who want to know more about people they are suspicious of. These could be adults who are befriending their children. They might be shadowy romantic interests whom loved ones have met through dating sites. Also, people can check to see if there are sex offenders in a neighborhood they’re thinking about moving into.

In these ways, sex offender registries serve to protect children, help police with investigations and serve as a deterrent to offenders who know that they could be under observation.

However, there are things that people are not allowed to do with this information. They may not threaten, intimidate or harass anyone they discover on a registry. It’s a crime to do so.

More significantly for employers and CRAs, sex offender data is used to screen job candidates for employment. It’s also used by organizations that employ volunteers, especially when those volunteers work with children or vulnerable populations.

With employee background checks, there are restrictions on the permissible use of sex offender records. There are indeed situations under which employers may make hiring decisions based on what their CRAs discover in sex offender registries. However, employers aren’t allowed to consider sex crime records in all cases, and the laws vary across states and localities.

Sex Offender Employment Laws: A Birds-Eye View

Sex offender employment laws address two questions. First, are employers allowed to order a background check that includes a check of sex offender registries? The answer is, generally, yes, although there are some restrictions on when just such a check may be ordered.

Second, if the background check reveals that the candidate is a sex offender, may the employer refuse to hire on that basis? The general answer is no, but there are a number of exceptions designed to protect children and other vulnerable populations. A general guideline is that, if hiring a sex offender would create an unreasonable risk, either to other employees or to the population that the employer serves, the employer can and should refuse to hire.

The Federal Credit Reporting Act (FCRA) lays out what an employer must do before requesting a background check of any kind from a CRA. In addition, many state and local laws impose more stringent restrictions. Before engaging a CRA, the employer must inform the candidate in writing that a background search will be used as input into the hiring decision, and the candidate must consent to the background check.

Many states have adopted fair chance hiring laws that require an employer to evaluate the employee and make a tentative hiring decision before conducting any kind of background check, including a search of sex offender registries. In these cases, once the employer has decided in favor of the candidate, they must make a provisional job offer before they order a background search.

If, after the background check, the employer decides not to hire based on a record in the sex offender registry, the FCRA specifies what the employer must do. Essentially, they must be transparent to the candidate about the decision and give the candidate a chance to rebut the information that the employer has used. They are required to give the individual a copy of the report that they based their decision on as well as a copy of the candidate’s rights under the FCRA. They must do these things before they rescind the hiring decision.

If, based on sex crime history, the employer does make a decision not to hire, they must tell the applicant that the decision was made because of the report. They must provide contact information for the CRA that produced the report. They must tell the candidate that the decision was theirs and was not made by the CRA. They have to inform the candidate that the candidate still has the right to dispute the report and that the candidate may order another report from the CRA.

Even if an employer faithfully follows the process and learns of a sex offense in the candidate’s past, they can’t necessarily refuse to hire. On the other hand, there are situations where they must not hire. For one thing, a registered sex offender is prohibited by law from working in certain industries. While details vary from state to state, an employer is allowed to base hiring decisions on sex offender registries in specific lines of business. These may include K-12 education, day care, preschools, in-home care providers, youth sports organizations, patient-facing health care providers, humane societies, adoption agencies, public housing agencies, other government agencies and financial institutions.

In addition, there might be other exceptions under state law where an employer may decline to hire, exceptions that exist to protect at-risk people. In these cases, the law specifies who these at-risk populations are; it’s not a determination that’s up to the employer. Misusing sex offender registry information is a serious offense for an employer that can result in heavy fines and other sanctions.

As you can see, using sex offender information requires a balancing act on the part of an employer. On one hand, no one wants to hire a person when that would violate the law or put their employees and clientele at risk. On the other hand, it’s also important to comply with all applicable laws and avoid the consequences that come with violating them.

A CRA should be a partner in helping the employer understand what they can and cannot do with regard to sex offense information. A first step is to help employers understand what exceptions and exemptions exist in their state. They need to know which businesses work with vulnerable populations and how these populations are defined in the state. Typically, these will be organizations that work with children, the elderly and people with disabilities. The definition might also include other public-facing entities such as banks and government agencies.

When an employer discovers that a candidate they’d otherwise like to hire has a sex offense in their past, there are two situations where the decision is out of their hands. If registered sex offenders are forbidden by law from working in their business, they must not hire. On the other hand, if they’ve made a conditional job offer, and state regulations disallow hiring decisions based on sex offender status for their industry, they may not rescind the offer. If neither of these is the case, that leaves an area where it’s up to the employer to decide whether hiring the person would create a risk for their business.

In these situations, the employer should consider several factors to determine whether their clients or employees would be at risk due to the presence of this individual in the workplace. These factors should include how long ago the offense was, whether there’s evidence of rehabilitation, the candidate’s work history, other background information and whom the applicant would actually interact with once they’re on the job.

To avoid inconsistency or confusion, the employer ought to have a documented risk assessment process in place. This would be applied to any candidate for whom a sex crime or other crime appeared in a background check. Legal counsel should be involved in creating this process. Employers should also document the specifics of each particular case.

Employers are in a tough spot. They can be liable if an unidentified sex offender slips through the process and later does something terrible in the course of their employment. They can be liable if they illegally use sex offense history as a reason not to hire. They need to make sure they identify all people who have committed sex crimes, and they need to ensure that they deal legally with the ones they identify.

The Right CRA Is Critical

Eliminating dangerous sex offenders from the workplace involves a lot more than logging on to a registry website and entering a name. Very few organizations have the time and resources to check registries in 50 states and 150 other jurisdictions.

Furthermore, it can be a challenge just to validate that a registry entry corresponds to the person you’re searching on. If the individual’s name is a common one, many state registries have limited additional search fields to narrow things down. The NSOPW can be searched only by name and zip code.

Some employers might choose to search the registries on their own. Others might be tempted to use an online provider that advertises free sex offender registry searches. However, when you consider the risk of hiring an individual who might present a risk in the workplace, or the liability of refusing to hire based on erroneous information, that’s a dangerous path to take.

Despite all the nationwide effort to consolidate sex offender data into accessible data sources, finding up-to-date sex crime information remains a hard thing to accomplish. States are inconsistent in how timely their updates are. Not all registries contain as much information as employers would like. An accurate search requires a CRA who understands the strengths and weaknesses of the registries. The CRA may have to search for additional background information to corroborate and expand on what’s in the registries.

Then there’s the matter of what an employer as allowed to do with sex offender information once they learn about it. State and local laws are complex. Many of them restrict the use of criminal records, including records of sex crimes, from being considered in making hiring decisions. Employers need a thorough understanding of the regulations to negotiate the ground between hiring a person who’s a threat to their business and running afoul of the law. Increasingly, they can benefit from the knowledge and experience of a CRA who keeps abreast of the latest developments.

An employer-facing CRA is expected to be the expert, so there’s even more pressure to address all the issues accurately. That’s why so many CRAs rely on a wholesale screener such as Eagle Eye Screening Services to access public records and provide information that they can trust. Our search processes are comprehensive, scalable and use the most up-to-date technology. We take seriously the responsibility to merit the trust that employers and CRAs vest in us. Contact us to find out how we can provide accurate and compliant search results and seamlessly integrate them into your screening processes.