The Pitfalls of Undergoing an FBI Criminal Background Check

The Pitfalls of Undergoing an FBI Criminal Background Check

Believe or not, the FBI does not know everything about you!  That can be a problem if you need to undergo an FBI criminal background check to get hired or be issued a professional or occupational license.

FBI Criminal Database Lacks Critical Information 

Once considered the “gold standard” for conducting criminal background checks, a recent report by the National Employment Law Project (NELP), a legal research and advocacy group, found that the FBI’s criminal database only contains disposition information for 50% of documented arrests. In other words, there is no information about what happened in 50% of the arrests on file.

Even though our legal system presumes you are innocent until proven guilty, we know that employers routinely reject job applicants based on nothing more than an arrest record.

In 2012, nearly 17 million people underwent a FBI background check for employment or license screening purposes. The incidence of non-criminal FBI criminal background checks has more than doubled since 2007.

The FBI maintains the only repository containing arrest record information for the entire U.S. Because of the missing disposition information, an FBI’s criminal background report casts an unduly harsh spotlight on a person’s arrest history.

Your criminal history is like a novel.  If you were only to read the first chapter you would be hard pressed to correctly predict how the novel ends.  Similarly, if all you knew was that the person had been arrested, you would not be able to predict its outcome with any accuracy. That doesn’t stop some people from assuming that if someone has been arrested he/she must have done something wrong.

The following examples illustrate why arrest records should not be used as an employment screening tool:

  • M was arrested on suspicion of attempting to burglarize a vehicle.  He was never formally charged with the crime because witnesses came forward to vouch for his innocence. Nevertheless, the FBI reports that M has been arrested for attempt burglary (a forcible felony).
  • When he was a juvenile, J and his classmates were goofing off and left several harassing and religiously disparaging phone messages for another classmate. J was arrested for a hate crime and received a “station adjustment” (a lecture) from the arresting officer and released to his parents’ custody. J never appeared in court on the matter. While in college, J gets a summer internship with a financial services company and undergoes an FBI background check.The FBI’s report includes J’s juvenile arrest for a hate crime.
  • N was charged with multiple felony drug offenses.  N pled guilty to the amended, reduced charge of possession of a controlled substance and the remaining charges against her were dropped. The FBI’s database only contains the original, more serious charges and no information about what happened to the case after N's arrest.

Arrest Record Information Readily Available Despite Illinois Law

In Illinois, employers are prohibited from asking job applicants or employees about their arrest history. Licensing bodies generally are only interested in whether someone has a conviction record. Although someone’s arrest history is not supposed to influence employment decisions, the information is readily available.Once in the employers’ hands, the information is hard to ignore.

As long as employers and licensing authorities are authorized to submit fingerprints to the FBI, the FBI will continue to release adult and juvenile arrest information.  As a federal agency, the FBI is not required to comply with Illinois’ prohibition against the use of someone’s arrest record to make an employment decision.

If you plan to work with vulnerable populations (children, elderly, disabled), or in health care, financial services or law enforcement, or apply for certain kinds professional or occupational licenses you can expect to undergo an FBI background check.

Request Your FBI Criminal History

If you want to find out what criminal history information the FBI has on you, you can request your record.  Currently, there is an $18 processing fee to do so. Instructions on how to request your FBI record can be found here.

If you believe that the criminal history information the FBI has on you is inaccurate or incomplete, there are procedures in place to challenge it.  In 2010, 1,306 people asked the FBI to correct criminal history information in its database. Of this number, 784 (60%) had their records fixed or modified by the FBI.  Also, it may be possible to use this process to notify the FBI of the outcome of your criminal case to eliminate informational gaps in the FBI’s criminal database.  Don't let your arrest history unfairly brand you as a criminal.