The Tradeoff between Privacy and Openness in Employment Screening

The theme of this panel is the tradeoff between the right to privacy and the right to know. I think the tension between openness and privacy is one of the more challenging public policy issues of our time.

As an open society and a democratic society, access to government records is absolutely essential. I myself experience conflict around this issue. My first career for 11 years was as a librarian. One of the departments I supervised was the government documents repository.

I know how vitally important it is for a democratic society to make sure that we the people can serve as watchdogs to our government. But I wonder if the founders of our nation meant for openness and access to extend to our ability to be a watchdog over each other?

I got a call from a man last year who had been a successful director of a community cultural center. One night after working late, he was wrongfully arrested for prostitution ñ the result of driving home through an area where prostitutes congregated. The story of the arrest made the local paper and was picked up by a website called Mugshots.com.

He gave his name to me and told me to search it on Google and on Mugshots.com. Sure enough, I found an entry for him, complete with the photograph taken by the police department.

He lost his job, even though the police department admitted the error. And he found that he was unable to find work elsewhere. He was at his wit's end.

Last month, People magazine featured four people who had experienced similar difficulties to the man I just described, dated March 20, 2006 (page 177). The four people they highlighted were from the files of my organization. One of them, a California man, was and still is homeless, living out of his truck and working a night job part-time as a department store stocker. He has an evil twin in Arizona , someone who either has used his identity when arrested, or perhaps a case of mistaken identity because he has a common name. Although he once had a successful career in the telecommunications field, he now finds himself unemployable because of the negative information pulled up by background checks.

The only way he found this out was to run a background check on himself. He used two online information brokers and found the references to his evil twin in Arizona . And by the way, that is something we recommend ñ that individuals who find they are inexplicably turned down for one job after another run a background check on themselves.

We have heard from several individuals who have described their experiences with background checks that retrieve wrongful criminal records. Even after they have informed the employer that the background report is in error, they've learned that it's too late. The employer has moved on to another applicant, or perhaps is so risk-averse that the employer does not want the hassle of dealing with someone with a tarnished record, even though it's erroneous.

So, what is the solution? How is a balance to be achieved between open access and privacy ñ such that false positives and horror stories like those I've told today can be avoided? I have five recommendations.

• First, the employment background check law ñ a subsection of the Fair Credit Reporting Act ñ should be separated from the FCRA, made its own standalone law, and its loopholes closed.
  
  One loophole to close is the adverse action procedure. All individuals who are the subjects of background checks should receive a copy of their report ñ not just those who are having an adverse decision made about them because of the results of a background check.
  
  It's too easy for the employer to tell the applicant that someone else got the job who was more highly skilled ñ when it really was the negative information in the background check that led to the rejection.
  
  The word for this approach is transparency. The background check process should be an open book to all applicants.

• Second, the process that people must go through to get a certificate of innocence from the court system must be streamlined. We have talked to individuals who are bounced from one county court office to another in their attempt to clear their wrongful criminal records. It can take a long time.

• Third, business schools need to include employment screening in the curriculum if they don't already. And the curriculum should discuss problems like those we at the Privacy Rights Clearinghouse have encountered with victims of criminal identity theft and mistaken identity.

• Fourth, employers need to be educated and encouraged to be more tolerant when they receive background checks with negative information that is later found to be erroneous. Too often, they are reluctant to hire the applicant, even through their slate is actually clean.

• Finally, I believe employer education and tolerance is needed in cases where the negative information is actually accurate. We have heard from a number of people who have lost existing jobs or who have not been hired for new jobs because of a bad-check-writing history from long ago ñ or a youthful indiscretion that has been followed by many years of socially responsible behavior.

I am concerned that as the years march on and as more and more employment decisions are based on database searches alone, that we will have in this country a growing underclass of people who are chronically unemployed and living on the edges of society.

I have already encountered three people who have become homeless because of problems with erroneous criminal records and the background check process.

As a society, we cannot afford to allow this to happen.

Given what I have observed of the NAPBS, your association will be part of the solution to this most serious societal problem.

Thank you for your attention and consideration.

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