[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
EMPLOYER ACCESS TO CRIMINAL BACKGROUND CHECKS: THE NEED FOR EFFICIENCY 
                              AND ACCURACY

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 26, 2007

                               __________

                           Serial No. 110-93

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

                                 ______

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MARTIN T. MEEHAN, Massachusetts      DANIEL E. LUNGREN, California
ARTUR DAVIS, Alabama
TAMMY BALDWIN, Wisconsin

                      Bobby Vassar, Chief Counsel

                    Michael Volkov, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 26, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable J. Randy Forbes, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     3

                               WITNESSES

Mr. Frank A.S. Campbell, Deputy Assistant Attorney General, 
  Office of Legal Policy, United States Department of Justice, 
  Washington, DC
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Mr. Maurice Emsellem, National Employment Law Project, Oakland, 
  CA
  Oral Testimony.................................................    15
  Prepared Statement.............................................    18
Ms. Sharon M. Dietrich, Managing Attorney, Employment and Public 
  Benefits, Community Legal Services (CLS), Philadelphia, PA
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37
Mr. Ronald P. Hawley, Executive Director, SEARCH, The National 
  Consortium for Justice Information and Statistics, Sacramento, 
  CA
  Oral Testimony.................................................    53
  Prepared Statement.............................................    54
Mr. Floyd I. Clarke, Vice President for Corporate Compliance, Mac 
  Andrews & Forbes Holdings, Inc., Philadelphia, PA
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61
Mr. Robert F. Davis, International Vice President and National 
  Legislative Director, Transportation Communications 
  International Union, Rockville, MD
  Oral Testimony.................................................    64
  Prepared Statement.............................................    66

                                APPENDIX

Material Submitted for the Hearing Record........................    81


EMPLOYER ACCESS TO CRIMINAL BACKGROUND CHECKS: THE NEED FOR EFFICIENCY 
                              AND ACCURACY

                              ----------                              


                        THURSDAY, APRIL 26, 2007

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:02 a.m., in 
Room 2237, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Delahunt, Johnson, Weiner, 
Jackson Lee, Baldwin, Forbes, Gohmert, Coble, Chabot, and 
Lungren.
    Staff present: Bobby Vassar, Chief Counsel; Ameer Gopalani, 
Majority Counsel; Gregory Barnes, Majority Counsel; Caroline 
Lynch, Minority Counsel; and Veronica L. Eligan, Majority 
Professional Staff Assistant.
    Mr. Scott. The Subcommittee will come to order.
    I am pleased to welcome you today to this hearing before 
the Subcommittee on Crime, Terrorism, and Homeland Security on 
``Employer Access to Criminal Background Checks: The Need for 
Efficiency and Accuracy.''
    This hearing will explore the balance between the growing 
desire of private industry to directly access criminal history 
and background check information and the need to ensure the 
reliability, accuracy and relevance of such background checks.
    There are about 1,200 State statutes nationwide permitting 
different groups and businesses to access the FBI data through 
State governments.
    These statutes generally require background checks in 
certain areas that the State has sought to regulate, such as 
persons involved in civil service, day care, school and nursing 
home workers, taxi drivers, private security guards and members 
of regulated professions.
    Some States allow employers access to the information while 
others are more protective of individual privacy. The result is 
a mismatch of statutes with inconsistent laws, with very little 
to show in the way of standard, rationale or scheme.
    Moreover, there are complaints that State processes are 
inefficient and require an inordinately long waiting period for 
information that may be critical to safety, liability as well 
as filling staff positions critical to effective operation of a 
business or an organization.
    And about 10 States have no process for records checks for 
some industries and organizations, even where checks are 
required by law or otherwise deemed necessary.
    In recent years, Congress has passed laws allowing some 
employers, such as nursing homes and banking institutions, to 
directly initiate background checks with the FBI, bypassing 
State operations.
    Other employers try to access the information through other 
means, such as going through private security firms.
    With an ever-greater demand for this information, it is 
important that there be a fair and consistent standard to 
balance employer needs with the important goal of ensuring that 
qualified employees are not barred from employment.
    In 2004, the Subcommittee considered and Congress passed 
the Intelligence Reform and Terrorism Prevention Act of 2004, 
which included a provision to allow private security officer 
firms to submit FBI background check requests through the 
States.
    The law also included a provision requiring the Attorney 
General to make recommendations to Congress for establishing a 
standardized and more efficient process for background check 
requests generally, and giving the Attorney General's authority 
to add more categories of organizations who are allowed to 
receive background check information.
    The Attorney General issued a report on these matters in 
June 2006 wherein he recommended that we move toward granting 
virtually all private employers and third-party screening 
firms, which employers often use to investigate job applicant's 
personal and financial histories, access to the FBI database to 
obtain criminal history information.
    Considering that some States may not prioritize the process 
of seeking an FBI record check or may not have a background 
check process at all, we need to develop ways for authorized 
employers to be able to have background checks completed.
    However, I am concerned about authorizing all employers 
access to criminal history information at the Federal level, 
given that not all States authorize such general access to 
State or FBI record information and, frankly, for good reason.
    In addition to the Attorney General's report suggesting 
that all employers eventually be authorized to receive criminal 
history information, the FBI has issued a proposed regulation 
to start including non-serious offenses such as juvenile and 
misdemeanor arrests and convictions, on criminal history 
reports.
    While specific juvenile and misdemeanor information may be 
appropriate in certain cases, it should not be made available 
generally.
    One reason for my concern on the indiscriminate broadening 
of the type of information and the persons who can get it is 
because of the disproportionately negative impact that such 
information may have on the employment prospects for 
minorities.
    Studies have shown that racial minorities are more likely 
than similarly situated Whites to be arrested, prosecuted, 
convicted and sentenced to prison, and for longer terms.
    Therefore, they are more likely to have arrest records and 
conviction records than similarly situated Whites. Indeed, 
African-Americans comprised 39 percent of those who have served 
prison time. Hispanics comprised 18 percent.
    Thus, employer policies that reject job applicants and 
employees with criminal records, while neutral on their face, 
have a racially disparate impact, unless there is a policy 
which establishes a clear nexus between the employer's desire 
to have criminal record information and the needs of the job, 
employers run a risk of violating Title VII of the Civil Rights 
Act of 1964.
    Another concern about broadening access and the information 
made available is the fact that the FBI database is fraught 
with inaccuracies. According to the Attorney General's report, 
the FBI is ``still missing final disposition information for 
approximately 50 percent of its records.''
    This means that many records fail to include information on 
dismissal of charges and expungements. With such inaccuracies, 
raw criminal record history information viewed by untrained 
eyes could do more harm than good and would unfairly deprive an 
employee or applicant of a good work opportunity and the 
employer of a good worker as well.
    Because of my concerns with the FBI's proposed regulation 
to include non-serious offense information which would have an 
extremely prejudicial impact on the employment prospects of 
people with minor criminal histories, many of whom were never 
even convicted of a crime, I want to join the gentlelady from 
California, Ms. Waters, in a letter to the attorney--I join the 
gentlelady from California, Ms. Waters in a letter to the 
Attorney General requesting that he delay the issuance of the 
proposed regulations.
    This will give us time to hear from our witnesses regarding 
the issue and to structure legislation aimed at allowing 
authorized employers sufficient access to appropriate criminal 
history and background information while not unduly prejudicing 
employment applicants.
    So I look forward to the witnesses' testimony today on how 
to improve the accuracy and efficiency in accessing criminal 
records information by authorized entities without unduly 
prejudicing and penalizing job applicants, including ex-
offenders.
    It is my privilege now to recognize my colleague from 
Virginia, the Ranking Member of the Subcommittee, Mr. Forbes, 
for his opening statement.
    Mr. Forbes. Thank you, Mr. Chairman, for holding this 
important hearing on employer access to the FBI criminal 
history background check database.
    This is, as you have mentioned, a complex issue that 
requires balancing two competing concerns, an employer's need 
to receive accurate criminal history records of potential 
employees, and a prospective employee's right to privacy.
    Currently, the FBI maintains criminal history records on 
more than 48 million individuals. The FBI collects these 
records from Federal and State law enforcement and does not 
verify the accuracy of the reports.
    Each State submits these records, including arrest, 
charging, disposition and sentencing information, to the FBI 
database.
    Traditionally, access to criminal history records has been 
limited to criminal justice agencies. In response to business 
demand for more thorough screening of prospective employers, 
access to FBI criminal history records was expanded to include 
non-criminal history checks.
    Federal statutes currently authorize background checks by 
the Federal Government for specific industries to promote 
public safety and national security.
    Additionally, Federal law grants States access to FBI 
criminal history records for background check purposes.
    Requests for non-criminal history background checks are 
growing rapidly. In fiscal year 2005, the FBI processed 9.8 
million non-criminal background checks, compared with only 6.8 
million checks in fiscal year 2001.
    According to statistics prepared for today's hearing by 
SEARCH, in States like Florida and California, non-criminal 
background checks have exceeded criminal background checks.
    The types of background checks vary depending on the needs 
of each State. Each State's request for an FBI-maintained 
criminal history record must be submitted through its criminal 
history record repository.
    This allows the State repository to compare its records 
with FBI-maintained records to ensure completeness and accuracy 
before determining whether an applicant is disqualified from 
employment.
    On average, 70 percent to 80 percent of State records 
contained the final disposition while only 50 percent of the 
arrest records in the FBI database contained the final 
disposition.
    Most of the private sector does not have access to FBI-
maintained records. Private employers collect background 
information from sources other than the FBI and often use a 
private firm to screen a prospective employee.
    In recent years, there has been a growing interest from the 
private sector for access to FBI-maintained records because 
they are housed in a central database and a fingerprint base.
    Expanding private-sector access to these record raises 
several concerns. For instance, should the private sector have 
direct access to FBI-maintained records, or should requests be 
processed through existing State repositories?
    How should the information be disseminated to the private 
sector, particularly since half of the FBI records do not 
contain dispositions?
    Should every part of a criminal history record be 
disseminated or only disqualifying information? Who determines 
what constitutes disqualifying information?
    I am looking forward to hearing the testimony from each of 
you today.
    And if I could just take a few more seconds, I want to just 
point out the logistics that we have in these hearings, by 
necessity. As you can see, we have six witnesses. We have a 
limited amount of time. Even the Chairman is very gracious in 
allowing us sufficient time to ask questions.
    But I want to encourage you, if you have additional 
evidence that we don't get to, that we don't ask, get it to us 
so that we can submit it in the records.
    And even for people sitting out there listening, if you 
have additional information you think is important on this 
subject, the Chairman is very lenient in allowing us to put 
information in that we think is factually relevant.
    And we encourage you to get that to us so that we can get a 
full record to make the right decisions.
    Mr. Chairman, I yield back.
    Mr. Scott. Mr. Forbes, we are going to scrutinize 
everything---- [Laughter.]
    We have a distinguished panel of witnesses here today to 
help us consider the important issues that are currently before 
us.
    Our first witness will be Mr. Frank Campbell, Deputy 
Assistant Attorney General in the Office of Legal Policy at the 
United States Department of Justice. He has served as both a 
senior counsel and Deputy Assistant Attorney General in the 
Office of Legal Policy since 1998. He was responsible for 
developing the June 2006 Attorney General's report on criminal 
history background checks.
    Before joining the Office of Legal Policy, he served for 4 
years in the FBI general counsel's office, and practiced law 
for 14 years in Washington, D.C., emphasizing white collar 
criminal defense and civil litigation. He is a graduate of 
Lafayette College and has a law degree from George Washington 
University Law School.
    Our next witness will be Maurice Emsellem, policy director 
at the National Employment Law Project, a non-profit research 
and advocacy organization that works in partnership with local 
communities to deliver on our Nation's promise of economic 
opportunity. He is a nationally recognized expert in economic 
security programs, including the unemployment insurance system 
and employment rights of people with criminal records.
    He has published in academic journals, including the 
Stanford Law & Policy Review and the University of Michigan 
Journal of Law Reform, and has testified before Congress and 
State legislatures. He has a B.A. from the University of 
Michigan and a J.D. from the Northeastern University School of 
Law.
    Next will be Sharon Dietrich, managing attorney at 
Community Legal Services in Philadelphi (CLS). She has been an 
attorney with the employment law unit of the Community Legal 
Services since 1987. She became CLS's managing attorney for 
public benefits and employment in 1997. She has represented 
many individual ex-offenders who have been denied employment 
because of their criminal record. On May 1, 2001 she received 
an award from the Pennsylvania Prison Society in recognition of 
her work on behalf of people with criminal records.
    Next will be Ronald Hawley, executive director of SEARCH, a 
consortium of governor-appointed justice practitioners 
representing the 50 States and territories. Before joining 
SEARCH, Mr. Hawley served most recently as the governor-
appointed CIO of the State of North Carolina, where he managed 
operations in the Office of Information Technology Services, 
including the development of statewide policies and procedures 
and the enterprise architecture implemented by the State.
    Mr. Hawley began his career with the State Bureau of 
Investigation of the North Carolina Department of Justice, 
where he rose to the position of assistant director of the 
division of criminal information. He has a graduate degree from 
the University of Maine, an undergraduate degree from Campbell 
College in North Carolina, where he graduated with honors.
    Next is Floyd Clarke, vice president of corporate 
compliance at Mac Andrews & Forbes Holding Incorporated and a 
member of the board of managers of Allied Barton Security 
Services. Previously, he spent 30 years working for the FBI, 
ending in January 1994 as acting director of the bureau. He is 
a graduate of George Washington University.
    And our final witness will be Robert Davis, international 
vice president and national legislative director of the 
Transportation Communications International Union. Prior to his 
current position, he served as general chairman of the TCU 
Systems Board of Adjustment number 155 in Chicago from 1991 to 
1999. He also served as general secretary treasurer of the 
Systems Board of Adjustment number 155 from 1983 to 1991.
    Now, each of the witnesses' written statements will be made 
part of the record in its entirety.
    I would ask each witness to summarize his or her testimony 
in 5 minutes or less. And to help stay within the time, we have 
a little timing device which will start off green, will go to 
yellow when about 1 minute is left, and then go to red, when we 
would ask you to wrap up.
    So, Mr. Campbell, will you begin?

  TESTIMONY OF FRANK A.S. CAMPBELL, DEPUTY ASSISTANT ATTORNEY 
 GENERAL, OFFICE OF LEGAL POLICY, UNITED STATES DEPARTMENT OF 
                    JUSTICE, WASHINGTON, DC

    Mr. Campbell. Chairman Scott, Ranking Member Forbes and 
Members of the Subcommittee, my name is Frank Campbell, and I 
serve in the Office of Legal Policy of the United States 
Department of Justice. Thank you for the invitation to address 
you on issues relating to criminal history background checks.
    As you know, in June 2006, the Department of Justice sent 
to Congress the Attorney General's report on criminal history 
background checks. The report responded to a provision in the 
Intelligence Reform and Terrorism Prevention Act of 2004.
    The reporting requirement was based on congressional 
interest in developing a more uniform and rational system for 
assessing and using FBI criminal history records for employment 
suitability and risk assessment purposes.
    There appeared to be frustration with the existing approach 
of enacting separate State or Federal statutes authorizing 
access to FBI data for only particular employers or industries.
    The resulting patchwork of statutes allows access 
inconsistently across States and industries. For example, while 
the banking and nursing home industries have access authority, 
the chemical industry does not.
    And while private security companies can get FBI background 
checks in some States, in other States they cannot.
    Employers with no access authority are left with what they 
frequently consider less-than-adequate information for 
efficient and accurate criminal history checks.
    We therefore agree that Congress should revisit the 
authorities under which checks can be made of FBI criminal 
history information for non-criminal justice purposes.
    In preparing the report's recommendations, we sought, 
through a Federal Register notice, broad input from a variety 
of stakeholders with an interest in this issue.
    The information and points of view expressed in the many 
comments we received made us realize that improving criminal 
history background checks involved several different and 
sometimes competing interests.
    Broadly stated, they include the interest of employers in 
assessing the risk of hiring an individual with a criminal 
history, finding efficient ways to do accurate background 
checks, protecting the privacy rights of individuals subject to 
a check, ensuring that State and Federal equal employment 
opportunity laws are followed by employers so that they do not 
unfairly exclude otherwise qualified applicants with criminal 
records from employment opportunities, and the broad social 
interest in facilitating the reentry and continued employment 
of ex-offenders.
    Employers want to make informed hiring decisions. Many 
employers therefore ask applicants if they have a criminal 
history. When they ask the questions, employers often seek 
information on whether the response is truthful and complete.
    Employers without access to FBI records seek criminal 
history through name base checks of other public and commercial 
information sources. However, they frequently find those 
sources to be inefficient, incomplete or inaccurate.
    FBI criminal records would add significant value to such 
checks by providing a nationwide database of records based on 
positive identification of fingerprints.
    FBI fingerprint checks can help promote privacy by making 
it less likely that another person's record would be wrongly 
associated with an applicant. They can also enhance security by 
making it less likely that a relevant criminal record will be 
missed.
    The report therefore recommends that when employers can 
lawfully ask whether an applicant has a criminal history, FBI 
records should be one of the sources available when they do a 
criminal background check.
    Such access, however, should be subject to a number of 
rules and conditions. The rules should include privacy 
protections for individuals to help ensure that the information 
is accurate, secure and used only for authorized purposes.
    The rules should require record screening in accordance 
with Federal and State laws that limit access to criminal 
records for employment purposes.
    In addition, the rules should require an employer's 
acknowledgment of legal obligations under Federal and State 
equal employment opportunity laws.
    To avoid government agencies making suitability decisions 
for private employers, the report recommends authorizing 
dissemination of the records to the employer or to a consumer 
reporting agency acting on the employer's behalf.
    The report also suggests that Congress consider providing 
employers guidance on suitability criteria to be used in 
criminal record screening.
    To take advantage of their more complete records, the 
access should be through States that agree to participate and 
that meet minimum standards for processing these checks.
    The Attorney General would establish a means of doing the 
checks in States that do not opt into the program.
    The report emphasized that the Attorney General must be 
able to prioritize private-sector checks to enable the scaling 
of the system to meet the demand in a way that does not 
interfere with the use of the system for criminal justice and 
national security purposes.
    Finally, recognizing the importance of record completeness 
for this use as well as the many other important uses made of 
this information, the report also calls for a renewed Federal 
effort to improve the accuracy, completeness and integration of 
the National Criminal History Records system.
    The report notes that in recent years the National Criminal 
History Improvement Program has been funded at smaller and 
smaller fractions of the amount requested in the president's 
budget.
    To achieve uniformity and improvements, Federal funds 
should be targeted at reaching national standards relating to 
prompt disposition reporting and record completeness, including 
information about declinations to prosecute and expungement and 
sealing orders.
    Private-sector criminal history checks will continue 
regardless of whether FBI information is made available for 
that purpose.
    The report concludes, however, that by establishing rules 
of access that account for the competing interests involved, 
allowing dissemination of FBI information to private employers 
can not only provide more accurate and reliable information for 
use in suitability screening, it can also enhance individual 
protections for privacy and fair use of criminal records in 
employment decisions generally.
    Thank you for the opportunity to appear at today's hearing. 
We look forward to assisting you on any legislation the 
Subcommittee may wish to develop on this subject. And I would 
be happy to answer your questions.
    [The prepared statement of Mr. Campbell follows:]

               Prepared Statement of Frank A.S. Campbell













    Mr. Scott. Thank you, Mr. Campbell.
    And before Mr. Emsellem starts, I want to recognize the 
gentleman from Texas, Mr. Gohmert, the gentleman from North 
Carolina, Mr. Coble, and the gentleman from California, Mr. 
Lungren, who are with us, and they have statements. We will 
accept them for the record when they desire.
    Mr. Emsellem?

                TESTIMONY OF MAURICE EMSELLEM, 
          NATIONAL EMPLOYMENT LAW PROJECT, OAKLAND, CA

    Mr. Emsellem. Chairman Scott, Members of the Committee, 
thank you for this opportunity to testify on the issue of 
criminal background checks for employment, which affects about 
one in five adults in the United States who have a record that 
will show up on a routine background check.
    I will focus today on two issues that we believe are 
critical to workers, employers and the integrity of criminal 
background checks authorized by Federal law.
    First, there is a serious need for standards in Federal 
laws to better protect those workers who have old or irrelevant 
criminal records that routinely deny them all sorts of jobs.
    The many Federal laws now on the books have often evolved 
in isolation, producing some laws with helpful standards and 
many without any.
    Today we will highlight the best of the Federal standards 
that now exist and talk about how to adopt them more broadly.
    Second, I will focus on the major problems with the FBI's 
rap sheets, now used to screen more than 5 million workers a 
year for employment and licensing purposes.
    These concerns take on special significance, given the 
Attorney General's proposal to vastly expand access to the 
FBI's criminal records to private employers and to private 
screening firms.
    We believe the system of FBI background checks produced for 
employment purposes specifically is now broken. Now is the time 
to fix the rap sheets, in our view, before expanding them.
    With regard to the question of standards, you will hear 
later about how the railroad workers and others have been 
treated arbitrarily as a result of background checks produced 
by private screening firms.
    Unfortunately, the situation is not much better in the case 
of those criminal background checks authorized by many Federal 
laws.
    Take the case of the Department of Homeland Security, which 
screens workers in Federal buildings to identify potential 
national security risks.
    In a recent publicized case from Pittsburgh, DHS decided 
that two women employed for decades in the Federal building's 
cafeteria were, ``unsuitable for employment,'' one based on a 
10-year-old shoplifting offense and the other for no offense at 
all, it turned out.
    As a result, the two women were literally escorted from the 
building and docked their pay. Their congressman, Mike Doyle, 
personally intervened to have the workers reinstated after they 
and his staff were denied information by DHS on their standards 
in the appeal process.
    How does this kind of arbitrary and unfair treatment 
happen? The problem is that the Federal laws that require 
background checks or authorize access to the FBI's criminal 
records fail to set any meaningful limits or guidelines on the 
background check process.
    These include many of the laws most recently passed by 
Congress, including the laws regulating private security 
officers, school employees and nursing home workers.
    For example, under each of these recent laws, employers are 
authorized to receive information on any felony conviction in 
the FBI system, no matter the age or seriousness of the 
offense, in addition to most misdemeanors.
    However, we know from major studies that 40 percent of 
employers won't hire someone once they know that that person 
has a record.
    The studies also say that anyone who hasn't committed a 
crime in 5 years, in more than 5 years, is statistically no 
more likely to commit another offense compared to someone who 
has never had any involvement in the criminal justice system.
    So once the cat is out of the bag as allowed under current 
law, there is a good chance the person will never be hired for 
the job, even if they have a solid work history and they have 
turned their lives around.
    What is the alternative, then? We believe all Federal laws 
should follow the lead of the terrorism screening laws that now 
apply to the Nation's port workers and truck drivers who haul 
hazardous material. Almost 3 million workers right now who are 
screened by TSA.
    These laws and the TSA regulations impose a 7-year age 
limit on all disqualifying felony convictions, and they limit 
the disqualifications to selected felonies, not including drug 
possession, welfare fraud, bad check writing, for example.
    Equally important, these transportation laws also include a 
``waiver procedure'' that allows most workers, except those 
convicted of especially serious security crimes, to prove to 
TSA that they have been rehabilitated and that they are not a 
security risk, even if they have a disqualifying felony record.
    We believe this framework can be successfully incorporated 
into most Federal background check laws.
    Second, what is wrong with providing FBI rap sheets to more 
employers and to private screening firms as proposed by the 
A.G.? For starters, when you have a chance, take a look at the 
rap sheets that we have included.
    The first rap sheet that we have included in the appendix 
to our testimony.
    You will notice right away that unless you are an 
experienced law enforcement official, they are often difficult 
to interpret because they include most every entry reported by 
the States, including every arrest and conviction, usually 
without any editing to help evaluate the actual number of 
convictions or the seriousness of the offense.
    So the first concern is that the FBI rap sheets were never 
designed to be read by non-law enforcement professionals, which 
means there is a huge potential for error and abuse by 
employers.
    In addition, according to the A.G.'s report, 50 percent of 
the records in the system are incomplete, mostly because the 
States failed to report the outcome of many arrests to the FBI, 
despite Federal regulations that give them 120 days to do so.
    So the FBI rap sheets routinely report arrests even if 
there has been no conviction, which ends up costing many 
workers their jobs or a chance at employment.
    Where there is a will, there is a way, however, to deal 
with this problem. With gun checks, the FBI has a policy of 
tracking down missing dispositions. According to the A.G.'s 
report, they track down 65 percent of missing dispositions on 
arrest within 3 days.
    While it is not cheap to take the time necessary to clean 
up the record before it is released to employers, until the 
States are better at reporting the information right away, we 
believe that is what is now required of employment checks as 
well.
    Finally, to make matters worse, the FBI recently proposed a 
regulation to start reporting non-serious offenses on the FBI's 
rap sheets produced for employment purposes.
    That means that any offense that involved fingerprinting, 
now including many juvenile arrests in some States and minor 
crimes like vagrancy and public drunkenness, will also appear 
on the FBI's rap sheets for employment purposes.
    We have many serious concerns with this policy, but suffice 
it to say there is no compelling justification, and none was 
offered in the regulations, to make this information available 
to employers, given the overwhelming prejudicial impact on 
workers.
    As Congresswoman Waters and Chairman Scott stated in their 
letter to the Attorney General, this policy should not be 
adopted until its impact has been reviewed more closely by 
Congress.
    The FBI's proposed regulation is an important reminder that 
the Federal system of criminal background checks that has 
evolved has been driven by the needs of the criminal justice 
system, not by what is necessary and reasonable to screen 
workers for employment.
    Mr. Scott. Could you try to wrap up a little bit?
    Mr. Emsellem. We hope this hearing is the first step to 
help create a more fair system that better balances these 
concerns. Thank you.
    [The prepared statement of Mr. Emsellem follows:]

                 Prepared Statement of Maurice Emsellem



































    Mr. Scott. Thank you.
    We have been joined by the gentleman from Ohio, Mr. Chabot.
    Ms. Dietrich?

TESTIMONY OF SHARON M. DIETRICH, MANAGING ATTORNEY, EMPLOYMENT 
     AND PUBLIC BENEFITS, COMMUNITY LEGAL SERVICES (CLS), 
                        PHILADELPHIA, PA

    Ms. Dietrich. Thank you, Chairman Scott. Thank you, Members 
of the Committee, for hearing from me today. As was said 
before, my name is Sharon Dietrich. I am the managing attorney 
for employment and public benefits at Community Legal Services 
in Philadelphia.
    I have had the honor of representing poor people in 
employment law matters for 20 years there, and I see my 
potential contribution today as talking about how background 
checking is affecting people with criminal records on the 
ground.
    When I started at CLS as a young employment lawyer 20 years 
ago, this simply was not an issue that I ever saw in my case 
load. I still remember the first time somebody came in and said 
I can't get a job because of my criminal record, because it was 
such a unique request for service from us.
    And flash forward from that time years ago to now. People 
having employment problems because of their criminal record is 
the single most common reason people come to CLS for help.
    We now are serving hundreds of people every year, or 
attempting to serve hundreds of people every year, who cannot 
get a job, cannot keep a job, are facing background check 
reports that are inaccurate.
    It is simply a burgeoning demand as a result of the greater 
availability of background check information.
    Now, as Chairman Scott said, Title VII does, in fact, apply 
to people with criminal records, and it has been construed to 
mean that if an employer has a policy to check records, it 
should try to narrowly tailor it to exclude the risks that they 
are to exclude.
    But I am sorry that I am here to say that, in fact, we see 
that for many people, any record, no matter how old, no matter 
how minor, is just a barrier to employment.
    I can't tell you how many people I have represented who 
have not even a misdemeanor, who have what are called summary 
offenses in Pennsylvania--shoplifting when they were 18 years 
old 20 years ago who now cannot get jobs.
    I can tell you that many of our clients have convictions 
that are decades old and have had exemplary histories since 
they had their interaction with the criminal justice system--
can't find a job.
    I remember one of my clients told me that it is more 
difficult for him to get a job now than it was when he came out 
of prison in 1980, because of the background checking and 
employers' zero-tolerance for people with criminal records.
    Sure, there are some employers that are trying to make a 
nuanced determination and write nuanced policies so that they 
are excluding people who provide a threat.
    But in my experience, there are many more employers who 
simply wait for the background check to come back, and if it 
says anything other than no record, that person is rejected.
    In addition, I need to talk about the background screening 
industry, because that is another growth industry that we have 
witnessed in my practice over the years, over, I would say, the 
last 10 years.
    Again, this used to be something that was non-existent. But 
now there are literally hundreds of background screening 
companies, and many of our clients come in after they have been 
fired from their jobs or rejected from their jobs with reports 
that were prepared by background screeners.
    And the same as with the suitability requirement, there is 
a Federal law that ostensibly applies here. The Fair Credit 
Reporting Act (FCRA) applies to the background screening 
industry.
    But there is very little enforcement of that law. And we 
regularly see product from the background screeners that is 
incorrect or otherwise prejudicial.
    I can't tell you how often we have seen people who come in 
with criminal records from background screening agencies that 
are actually reporting somebody else's criminal record, often 
somebody with a similar name, maybe even their father, who is 
senior, and they are a junior.
    But I am about to file a FCRA case on behalf of a woman who 
has a fairly common name, and there was another person with a 
similar date of birth, and the background checking company did 
a criminal record check in the Philadelphia court system and 
decided they were the same person. My client was fired from her 
job.
    This is not rare. This is something that is happening 
fairly regularly. And again, Federal laws exist. But I will say 
I do not think that the Equal Employment Opportunity Commission 
(EEOC) has ever made a priority of enforcing the standards 
around Title VII.
    The Federal Trade Commission is not making a priority of 
regulating the background check industry.
    And I urge you that so long as we are having these problems 
with the existing information that is available that Congress 
and the Federal Government not make FBI records available.
    As was pointed out earlier, they are even more unreliable, 
more inaccurate. It will only make the situation for my clients 
who are just really trying to support their families and 
themselves even more difficult. Thank you.
    [The prepared statement of Ms. Dietrich follows:]

                Prepared Statement of Sharon M. Dietrich

































    Mr. Scott. Thank you.
    Mr. Hawley?

TESTIMONY OF RONALD P. HAWLEY, EXECUTIVE DIRECTOR, SEARCH, THE 
  NATIONAL CONSORTIUM FOR JUSTICE INFORMATION AND STATISTICS, 
                         SACRAMENTO, CA

    Mr. Hawley. Mr. Chairman and Members of the Subcommittee, I 
am Ron Hawley, executive director of SEARCH. It is a great 
honor to have the opportunity to testify before you today.
    As you know, we have submitted testimony for the record, 
and I would like to take a few minutes to highlight key points 
of that testimony.
    SEARCH is a State criminal justice support organization 
comprised of governor's appointees from each State. Dues are 
paid by each State to support the work of search.
    And it is important to note that in most cases our members 
administer the criminal history records within their State.
    SEARCH is dedicated to improving the criminal justice 
system and the quality of justice through better information 
management, effective application of information and 
identification technology, and responsible law and policy.
    Although search has not taken a position on the many 
recommendations in the report, we believe that the report is 
exceptionally comprehensive, identifies the appropriate issues 
and asks the right questions.
    The 50 gubernatorial appointees who govern SEARCH are 
committed to the State-based approach to national background 
checking that is sensitive to privacy considerations.
    As Members of Congress continue to review the report, we 
expect to work with you, keeping these values in mind.
    Our work in the field dates back to our beginning in 1969 
when we first explored sharing criminal history data from State 
to State.
    Throughout, we have steadfastly sought to properly balance 
an individual's right to privacy with society's need for 
criminal history information.
    In fact, it is fair to say that our report, known as 
technical report number 13, included recommendations that 
helped to craft regulations adopted in March 1976 as 28 CFR 
Part 20.
    Most recently, we hosted, along with the Bureau of Justice 
Statistics, an all-day conference around the Attorney General's 
report that gave varied interest groups the opportunity to 
further what we believe is an essential national discussion.
    We believe resolution of these complex issues requires 
congressional action, and we commend the Chair and the 
Committee for beginning the process.
    Much progress has been made through the congressional 
support of the Interstate Identification Index, or III, 
administered by the FBI in partnership with the States; 
creation of the National Crime Prevention and Privacy Compact 
that established the Compact Council; and funding initiatives 
such as the National Criminal History Improvement Program.
    Nevertheless, more work needs to be done, and your 
continued support is needed. I would like to make the following 
points in the time remaining.
    All the research--and indeed, the Attorney General's 
report--indicates that the most complete record resides within 
the State repositories. This is, in part, the reasoning behind 
the III approach. Therefore, we believe it is essential that 
any future system continue to access State's records.
    We believe that utilizing the existing infrastructure is 
critical to the long-term success of any system moving forward. 
III and the Compact Council provide the foundation.
    However, III is also the infrastructure relied upon by the 
State and the Federal criminal justice system to provide daily 
support for public safety and homeland security work.
    Based on these first two points, we believe that the 
revenue currently generated through State fees for these checks 
must continue to be available to the States so that they can 
continue their part of the partnership that supports this 
system.
    We also support, as an option, allowing the record to be 
returned to a non-governmental entity. In a recent survey of 
the State repositories, SEARCH found that the current 
restrictions were a significant obstacle to increasing access 
to national searches.
    However, this increased access must be coupled with proper 
training and safeguards to ensure persons reading the record 
are qualified to correctly interpret the information.
    Work has begun to standardize these record reports, and it 
would go a long way toward solving this problem if that could 
be completed.
    We urge congressional funding to greatly expand the 
adoption of this standard report.
    Finally, we believe that any national system authorized by 
Congress should rely on the fingerprint-based databases 
maintained by the FBI and the State repositories.
    Criminal history background checks have become almost a 
rite of passage in our society for homeland security, for 
public safety, for risk management.
    But how do we determine who should be checked? How do we 
assure that the checks are accurate? How do we assure that the 
checks meet high standards for privacy? And how do we assure 
the offenders get the real second chance to reenter society?
    These are hard questions, and hard work lies ahead. We at 
SEARCH look forward to working with Congress, the Justice 
Department and all stakeholders on the critically important 
issue.
    On behalf of SEARCH and its governor's appointees, I thank 
you for this opportunity, and I would be glad to respond to 
questions.
    [The prepared statement of Mr. Hawley follows:]

                 Prepared Statement of Ronald P. Hawley

                              INTRODUCTION

    On behalf of SEARCH, the National Consortium for Justice 
Information and Statistics (``SEARCH''). I want to thank you Mr. 
Chairman and members of the subcommittee for this opportunity to 
testify regarding The Attorney General's Report on Criminal History 
Background Checks.
    SEARCH is a nonprofit membership organization created by and for 
the States and is dedicated to improving the criminal justice system 
and the quality of justice through better information management, 
effective application of information and identification technology, and 
responsible law and policy. SEARCH is governed by a Membership Group 
comprised of one gubernatorial appointee from each of the 50 States, 
the District of Columbia, Puerto Rico and the Virgin Islands. Each 
state pays dues in support of the work of SEARCH. Members are primarily 
State-level justice officials responsible for operational decisions and 
policymaking concerning the management of criminal justice information, 
particularly criminal history information.
    Since our founding in 1969, when the federal Law Enforcement 
Assistance Administration created Project SEARCH to explore the 
feasibility, practicality and cost-effectiveness of developing a 
computerized criminal history records system and of electronically 
exchanging these records across state lines we have steadfastly sought 
to balance the individual's right to privacy with society's need for 
criminal history information. In 1970, SEARCH first published findings 
and recommendations regarding the security, privacy and confidentiality 
of information contained in computerized criminal history files. 
Subsequent revisions led to a comprehensive rethinking of criminal 
justice information policy in the form of a publication known as 
Technical Report No. 13. By any measure, the standards in Technical 
Report No. 13 had an important impact upon law and policy with respect 
to criminal justice information. The standards served in large measure 
as a basis for the Law Enforcement Assistance Administration's 
development of comprehensive regulations for criminal history record 
information adopted in March 1976 as 28 C.F.R. Part 20.
    The SEARCH Membership Group has not taken a position on the 
Attorney General's Report. However, we find it to be an exceptionally 
comprehensive discussion of meaningful issues and it asks the right 
questions. Most of these issues and questions are not new to the SEARCH 
Membership. Our testimony today focuses on several concepts and 
strategies which would contribute significantly to an improved national 
system for conducting national criminal history record checks for 
national security, employment, and licensing, as well as the screening 
of prospective volunteers who have access to the young infirm or 
elderly.
    SEARCH has a long history of involvement with criminal record 
background checks, not only how these checks are administered by our 
members but also contributing to the formulation of national and state 
policies that guide the scope and use of criminal record background 
screening. I will mention but a few recent relevant activities. In 
2005, SEARCH published the Report of the National Task Force on the 
Commercial Sale of Criminal Justice Record Information. We believe this 
report is the first-ever comprehensive look at the role that commercial 
background screening companies play in the collection, maintenance, 
sale and dissemination of criminal history record information for 
employment screening and other important risk management purposes. In 
2006, we concluded the work of the National Task Force on the Criminal 
Backgrounding of America. The Task Force Report, as well as other 
SEARCH activities, helped to inform the Attorney General's Report on 
Criminal History Background Checks and are referenced in the Attorney 
General's Report. This past February SEARCH hosted an all day 
conference entitled Expanding Access to Criminal History Information 
and Improving Criminal Record Backgrounding which brought together and 
gave varied interest groups the opportunity to further what we believe 
is an essential national discussion. Because this discussion can only 
move toward final resolution through congressional action, I commend 
the Chair and this committee for holding these hearings.

      THE NEED FOR CONTINUING CONGRESSIONAL LEADERSHIP AND SUPPORT

    The Attorney General's Report and much of my testimony today will 
refer to the national system, administered by the FBI, for exchanging 
criminal history record information known as the Interstate 
Identification Index, or III. Similarly, both the Attorney General's 
Report and my testimony will refer to the National Crime Prevention and 
Privacy Compact and ``Compact Council'' established under the Crime 
Identification Technology Act of 1998 (PL 105-251).
    It should be noted that although today we are talking about the 
Interstate Identification Index in the context of noncriminal justice 
purpose background checks, it is this same system, the III, upon which 
detectives depend when conducting criminal investigations, prosecutors 
rely when making charging decisions, judges rely when passing 
sentences, corrections officials depend on when classifying inmates and 
it is the III that supports an array of other criminal justice system 
tasks. It is the same system that is used in part to screen prospective 
hazardous materials drivers and a host of other homeland security 
related applications. In short, anything that impacts the Interstate 
Identification Index, either positively or negatively, may effect the 
functioning of our state and federal criminal justice systems as well 
as the national system for conducting criminal record background checks 
for homeland security, employment, licensing and other authorized 
purposes.
    Ideally, any undertaking to improve the national criminal history 
record check system should build upon the existing infrastructure 
governed by the National Crime Prevention and Privacy Compact. The 
Compact governs the use of the Interstate Identification Index (III) 
System for conducting national criminal history record searches for 
noncriminal justice purposes, such as background screening for 
employment, licensing and volunteering. The States and the Federal 
Government have invested a great deal of expense and effort over a 
period of more than 25 years to implement the III system, which 
provided access to more than 60 million criminal history records as of 
March 2007.
    Much of the growth of the III system can be credited to the 
Congress's creation and continuing support of the National Criminal 
History Improvement Program (NCHIP), an umbrella program that 
implements provisions of the Crime Identification Technology Act of 
1998, the Brady Handgun Violence Prevention Act, the National Child 
Protection Act of 1993 and several others. Since the inception of NCHIP 
in 1995, the number of automated criminal history records held by state 
criminal record repositories and available for sharing between the 
States and the FBI under III increased by an estimated 98 percent. As 
of March 2007, 95 percent of the criminal history record information in 
the FBI administered database was contributed by State and local law 
enforcement, courts and other local justice entities, typically through 
a State-level criminal record repository.
    We believe that the framework for discussion of how best to conduct 
criminal history background checks would not today be taking place but 
for the Congress's initiation and continuing support of various grant 
programs and especially NCHIP which has nurtured the extraordinary 
success of the cooperative partnership between the States and the 
Criminal Justice Information Services Division of the FBI that is III, 
the Interstate Identification Index.
    With the ongoing need to replace technology, enhance technology and 
process an ever growing statutorily mandated criminal background check 
workload, homeland security related workload, as well as efficiently 
addressing continued growth of criminal justice applications, we 
believe that NCHIP and related grant programs must be sustained and 
expanded.

 BACKGROUND CHECKS TODAY--STATE REPOSITORIES, FINGERPRINTS AND THE FBI

    As the Attorney General discusses in his report access to criminal 
history records is far from universal and constrained by such issues as 
who has statutory authorization, inconsistent costs, privacy concerns, 
and whether the search of a criminal records database is based on 
matching biometric identifiers (e.g., fingerprints) or merely names. 
Beyond, or perhaps supplemental to accessing official records is the 
data available for purchase from commercial information providers. It 
is useful to recognize that at both the state and national levels 
criminal record background screening relies on databases that were 
originally established to serve the needs of the criminal justice 
community. As previously noted, those needs remain in place although at 
the federal level and in many states it is now common to find that the 
volume of inquiries for background checks surpasses the criminal 
justice related volume.
    More than 1200 state laws, often referred to as Public Law 92-544 
statutes have been approved by the Attorney General as sufficient to 
provide access to the national criminal records database as part of a 
background screening process. Typically, a request for a national 
search for a noncriminal justice purpose authorized by a State statute 
is submitted to the State's criminal history record repository and 
begins with a fingerprint-based search of the repository's criminal 
history record database. Commonly, an FBI search follows if the State 
repository fails to identify the applicant as having a State record. In 
other instances, the applicant fingerprints are submitted to the FBI 
independent of whether an identification and record have surfaced at 
the State level. In these instances, both the State level and national 
level information is forwarded to the adjudicating entity. Either of 
these approaches provides a more comprehensive search than a search 
conducted by the FBI alone, since State databases are more complete 
than the centralized database of State offenders maintained by the FBI. 
The Attorney General's report recognizes the importance of the state 
held records and urges that under any scenario those records be 
accessed. We recommend that any improvement to conducting criminal 
history background checks retain a check of the state held records. In 
addition to providing the most reliable search, the fees charged by 
State repositories for such searches provide funds that the States rely 
upon to support their criminal history record systems, which are the 
foundation not only for employment and licensing decisions but also for 
an array of critical criminal justice decisions such as charging, bond 
setting, sentencing and others.
    We would be opposed to the development of any system that fails to 
take advantage of state-maintained records. These records have been 
shown to be more complete than those maintained by the FBI. State-
maintained databases contain arrests that may not be included in the 
FBI's files, and are more apt to include dispositions of arrest 
charges. This is the primary reason why the FBI and State officials 
agreed 25 years ago to begin the phased implementation of the III 
system, which is designed ultimately to make State repository records 
available for all national search purposes instead of FBI records.
    FBI-held offender records continue to be the primary database used 
for national noncriminal justice search purposes. Many of the records 
provided as a result of such searches lack disposition information. In 
some instances, such as requests through the National Instant Criminal 
Record Background Check System (NICS), the burden of providing this 
missing disposition information falls primarily upon the State 
repositories, which do not receive compensation for this activity other 
than from their own legislatures.
    To the extent that the national system that may be authorized by 
the Congress permits additional noncriminal justice entities to bypass 
the State repositories and apply directly to the FBI or to some other 
national-level organization, the problem of missing dispositions will 
worsen and the burden on State repositories will increase. Any 
resulting loss of funds that repositories receive for conducting 
noncriminal justice background checks would seriously impede their 
ability to collect, search and forward criminal records to the FBI, 
resulting in the steady erosion of the quality of criminal records 
maintained by the FBI. Meanwhile, the FBI's workload would increase 
significantly. Sizing for the FBI's Integrated Automated Fingerprint 
Identification System was based, in part, on the well-recognized fact 
that two-thirds of arrested individuals have previous criminal 
histories; identification of these individuals at the State level would 
spare the FBI from having to conduct a repetitive search.
    For these reasons, we urge the Committee to recommend that 
appropriate federal funding be provided to compensate State 
repositories if they are expected to contribute services to a national 
check system that deprives the States of existing fees.
    A 2005 SEARCH survey of the state criminal record repositories 
indicated that the greatest obstacle to increased State participation 
in programs to provide national searches for noncriminal justice 
purposes is the fact that current Federal law does not permit the 
repositories to make criminal history records, or parts of them, 
available to private noncriminal justice entities, such as volunteer 
agencies covered by the National Child Protection Act or non-
governmental entities authorized under State statutes enacted pursuant 
to Public Law 92-544. Instead, the States must designate State agencies 
to make fitness determinations and forward them to the applicant 
noncriminal justice agencies.
    We urge the Committee to recommend that the States and the FBI be 
authorized, as an option, to make criminal history records disseminated 
by the FBI or accessed by a State from the FBI available to 
nongovernmental agencies, such as private employers and agencies that 
deal with children, the elderly and disabled persons. We believe these 
agencies are able to make their own fitness determinations concerning 
their applicants as an alternative to State agencies that may not be 
familiar with all of the circumstances concerning applicants' duties 
and the environments in which they will be employed or may volunteer. 
This recommendation is not intended to abrogate governmental 
determinations relating to regulatory responsibilities associated with 
licensing or certification for various positions.
    We recognize that some private noncriminal justice agencies may 
need training or instructions to help them interpret and understand 
criminal history records. We recommend that such agencies be required 
to enter into user agreements that contain such requirements as 
training, security and perhaps making the criminal history records 
reviewed during applicant processing available to the applicants 
themselves to help ensure that they are accurate and complete. 
Applicants should be given the opportunity to correct erroneous 
information and to appeal adverse decisions. We believe that this 
approach recognizes and is consistent with privacy protections and 
consumer rights. Such agreements should also require compliance audits 
and provide penalties for noncompliance.
    Criminal history records vary in presentation format, content and 
intelligibility from state-to-state and between states and the FBI. 
``Rap Sheet'' literacy can at times be a challenge for even those who 
routinely review criminal record information. To address this problem 
SEARCH, NLETS--the International Justice and Public Safety Sharing 
Network (an organization founded by the States), the Criminal Justice 
Information Services (CJIS) Division of the FBI, and the CJIS 
Division's Advisory Policy Board have banded together in a Joint Task 
Force which has formalized the specifications for a standardized 
criminal history record. The FBI, Kentucky, Wisconsin and Maine have 
implemented the specification and other states are moving in this 
direction. Given the wide ranging benefits that would be derived from 
national implementation, such as ease of understanding the criminal 
history record and the ability to create summary and chronologically 
merged information, we urge the committee to support funding to expand 
adoption of the standardized ``Rap Sheet'' through funding for 
programming and training.

               BACKGROUND CHECKS TODAY--NAME BASED CHECKS

    The Attorney General's Report discusses the expansion of access to 
criminal history record information. As previously noted, official 
State and FBI files can only be accessed when authorizing statutory 
authority is in place. These statutes typically require the submission 
of fingerprints and fees which vary widely from state-to-state. Policy 
makers, based on an April 2006 SEARCH survey, in at least 25 states 
make name-only searches of criminal history information available to 
the public through a website maintained by the criminal records 
repository in 15 states or the state court system in 10 states. In 
addition some of these states accept mailed-in, telephone and in-person 
requests. In states that offer this service it is common to find that 
the volume of name-based inquiries is ten-fold or greater than the 
number of noncriminal justice purpose fingerprint transactions.
    The National Task Force on the Commercial Sale of Criminal Justice 
Record Information found it difficult to quantify the number of 
criminal record related transactions processed industry-wide. ``In 
addition to a few large companies there are hundreds, perhaps even 
thousands, of local and regional companies.'' Further, there are wide 
differences in the number and scope of records maintained or accessed 
by companies.
    We believe that the criminal history record databases maintained by 
the FBI and the State repositories should continue to be the basis for 
national criminal history searches for noncriminal justice purposes. 
While some employers or volunteer organizations may wish to conduct 
name-based criminal record searches from the States or commercial 
databases compiled by private vendors, we believe that the databases 
that from the basis of a national system should be based on positive 
identification--fingerprint-based identification.
    In his testimony to Congress in May 2000, former Assistant FBI 
Director David Loesch shared the results of an analysis conducted by 
the Bureau of the 6.9 million records submitted for employment and 
licensing purposes in Fiscal Year 1997. According to Loesch, 8.7 
percent or just over 600,000 of the prints produced ``hits.'' Loesch 
further noted that 11.7 percent of the ``hits'' or 70,200 civil 
fingerprint cards reflected different names than those listed in the 
applicants' criminal history records. These individuals would have been 
missed entirely by name-only background checks. This and other studies 
have repeatedly substantiated that background checks based on names 
rather than positive identification consistently miss a substantial 
number of criminal records while erroneously associating applicants 
with criminal record information that does not relate to them.
    Criminal information databases maintained by private vendors are 
also not as complete as the official records maintained by State and 
Federal criminal record managers. Official records are populated with 
information from all segments of the criminal justice process, from 
arrest, trial, adjudication and correctional activity. Information in 
private databases is often collected from only one or two of the 
justice process components, such as courts or corrections. Further, 
access to records that are sealed or expunged from official databases 
is often provided in commercial databases, interfering with public 
policy efforts to give former offenders an opportunity to rebuild their 
lives. However, it is worthwhile to note that these databases would be 
the preferred choice in some circumstances and may also contain 
information not available in the governmentally administered records 
sets. For example, an employer may be very interested in vehicle 
related offenses committed by applicants for driving positions yet this 
kind of information is rarely included on the ``Rap Sheet.''
    A full discussion of the privacy protections built into the Fair 
Credit Reporting Act is not within the scope of this hearing. However, 
while the FCRA provides comprehensive protections that are imposed on 
commercial providers, it should be noted that governmentally provided 
information varies significantly on the restrictions that are applied. 
For example, in the case of the courts, they are often more open than 
that available from the private sector--even when both sets of 
information are name based.

                               CONCLUSION

    In our post 9/11 world we concur with the Attorney General's Report 
that there is a need to improve access for the private sector to 
criminal record information. Better access however does not necessarily 
mean universal unfettered access to all information for all employers 
and all positions. We know a great deal about recidivism rates but far 
less about evaluating the predictive value of a specific conviction 
over time when it comes to assessing public safety risk, integrity, or 
performance in a particular job. And after all isn't that the purposes 
of the criminal record background check?
    The Attorney General's Report recognizes that there must be a 
balance between appropriate access and privacy rights if we are to have 
an effective policy. The Report breaks some new ground in this area. 
While the SEARCH Membership has not taken a position on the privacy 
related recommendations in the Report the Committee should be aware 
that every state has a process which affords an opportunity to review a 
record and correct inaccuracies on that record.
    We are confident that the concepts, processes and procedures 
described above would contribute significantly to a noncriminal justice 
background check system that provides the public with maximum safety 
benefits while ensuring the viability of all justice entities that 
contribute criminal record data. Once again, we appreciate the 
opportunity to provide these comments, and we urge you to contact us if 
we can provide additional information concerning this vitally important 
matter.

    Mr. Scott. Thank you, Mr. Hawley.
    Mr. Clarke?

  TESTIMONY OF FLOYD I. CLARKE, VICE PRESIDENT FOR CORPORATE 
COMPLIANCE, MAC ANDREWS & FORBES HOLDINGS, INC., PHILADELPHIA, 
                               PA

    Mr. Clarke. Chairman Scott, Ranking Member Forbes and 
Members of the Subcommittee, thank you for the opportunity to 
testify today about the experiences of Allied Barton Security 
Services in attempting to use the criminal history database of 
the FBI to help screen applicants, as well as our views on the 
Attorney General's June 2006 report on criminal history 
background checks.
    I am a member of the board of managers for Allied Barton, 
and previously I spent 30 years working at the FBI, retiring in 
January 1994 after having served as the acting director of the 
bureau.
    Thus, I approach this issue with the benefit of the 
perspective of both the FBI and the private sector.
    Allied Barton is the largest American-owned security 
officer services company, with more than 48,000 security 
officers and over 100 offices located across the United States, 
including Virginia, from which we help protect the facilities, 
employees and customers of approximately 3,300 clients.
    Private security officers provide a primary line of defense 
for much of our country, securing countless lives, tens of 
thousands of important and valuable sites from coast to coast.
    For the safety of the people at these locations and the 
facilities involved, the companies employing these officers 
want to do all that we reasonably can to ensure that the 
officers that we hire are trustworthy and not likely to commit 
violence or, at worst, aid or support terrorists.
    At a minimum, this requires that our companies have a 
reliable and timely way of learning about any serious criminal 
history of our applicants and employees.
    The Attorney General's report concludes that comprehensive 
and reliable criminal history background checks cannot be 
accomplished without timely access to the records of the 
Criminal Justice Information Services Division of the FBI.
    And we agree, but let me explain why this is so important. 
Without access to the Federal records, the only records 
available to an employer are those in the States and their 
political subdivisions, where the records are typically kept at 
the courthouses in each of the countries.
    Since there is no practical way to check all 3,000 clerks 
of courts around the country for every employee, employers 
usually will request a record check in the counties in which 
the applicant says they have recently lived or worked.
    This leaves the employer blind to any criminal history 
records in States for which the applicant failed to disclose 
contacts.
    How can we rely upon a system to weed out untrustworthy and 
dangerous applicants when the process necessarily depends upon 
the honesty and forthright nature of every applicant?
    Mr. Chairman, I want to stress that Congress and, in 
particular, this Committee is to be commended for having 
endeavored to address this problem by enacting the Private 
Security Officers Employment Authorization Act in 2004 which 
allows Allied Barton and other firms to submit requests through 
the States to screen employees against the FBI's criminal 
history records.
    Unfortunately, for a variety of reasons, States have 
generally not exercised this authority, and employers still 
cannot regularly screen prospective employees against the 
national database.
    We work closely with the State regulators and, for the most 
part, they fully and competently fulfill their State role. 
However, the States with which we work have not prioritized the 
next step in seeking an FBI records check, despite the 2004 
statute permitting them to do so.
    In addition, several States have no background check 
process at all. Thus, without direct access to the FBI 
database, it is extremely difficult to verify applicant's 
backgrounds in these States.
    It is equally important that record checks be completed in 
a timely manner. Significant delays in getting responses are 
unfair to employers and applicants and present potential 
security risks.
    Hiring needs are typically time-sensitive. When records are 
slow in coming in, the employer is compelled to either pass 
over the applicant or to place him or her on the job pending 
the results of a State background check, leaving potentially 
unreliable and dangerous persons as protectors of loved ones, 
valuable sites and sometimes they are there for weeks.
    To address these problems, the Attorney General's report 
recommends that private sector employers be able to screen job 
applicants against the FBI's criminal history records, with the 
State serving as the primary access point for criminal 
background checks only if they can meet standards set by the 
Attorney General.
    The report recommends that in order to participate, States 
must meet standards specified by the Attorney General within 
the parameters set by statute for the scope of access and the 
methods and time frames for providing access and responses for 
these checks.
    Specifically, a State or the FBI should be required to 
respond to an approved submitting agency within three business 
days of the submission of the fingerprints.
    Thus, the Attorney General recommends that access to FBI-
maintained records should be available to employers when States 
do not opt to participate.
    Based upon our experience, we strongly support this 
recommendation and urge Congress to strengthen current law by 
providing statutory authority for such access.
    In conclusion, I want to point out that our experience 
indicates that protections afforded to employees of the kind 
that Congress wisely included in the Private Security Officers 
Employment Authorization Act have worked well to protect the 
important privacy rights, ensure fairness of the process, and 
to support essential policies to promote appropriate reentry of 
ex-offenders.
    These protections are consistent with the recommendations 
in the Attorney General's report.
    I want to thank you again for the opportunity to address 
the Subcommittee today. The Attorney General's report rightly 
recognized a serious homeland security issue and has provided 
very helpful recommendations to remedy that problem.
    I am confident that implementing these recommendations will 
make our Nation safer. Thank you.
    [The prepared statement of Mr. Clarke follows:]

                 Prepared Statement of Floyd I. Clarke

                            I. INTRODUCTION

    Chairman Scott, Ranking Member Forbes, and Members of the 
Subcommittee, thank you for the opportunity to testify today about the 
experience of AlliedBarton Security Services in attempting to use the 
criminal history database of the Federal Bureau of Investigation (FBI) 
to help screen applicants, as well as our views on the Attorney 
General's June 2006 Report on Criminal History Background Checks 
(``AG's Report'').\1\
---------------------------------------------------------------------------
    \1\ United States Department of Justice, The Attorney General's 
Report on Criminal History Background Checks (June 2006).
---------------------------------------------------------------------------
    I am the Vice President for Corporate Compliance of MacAndrews & 
Forbes Holdings, Inc. and a Member of the Board of Managers for 
AlliedBarton Security Services. Previously, I spent 30 years working at 
the Federal Bureau of Investigation, ending in January 1994 as Acting 
Director of the Bureau. Thus, I approach this issue with the benefit of 
the perspective of both the FBI and the private sector.
    AlliedBarton Security Services, headquartered in King of Prussia, 
Pennsylvania, is the largest American-owned security officer services 
company. Established in 1957, AlliedBarton is a trusted leader with 
proven expertise in providing highly trained security officers to a 
number of markets, including manufacturing and industrial, financial 
institutions, colleges and universities, commercial real estate, 
government services, healthcare, residential communities, and shopping 
malls and other retail facilities. AlliedBarton has more than 48,000 
security officers and over 100 offices located across the United States 
from which we help protect the facilities, employees, and customers of 
our approximately 3,300 clients.
    Congress, and in particular this committee, should be commended for 
having recognized, in 2004, the imperative for having ``professional, 
reliable, and responsible security officers for the protection of 
people, facilities, and institutions'' and that these private security 
officers ``should be thoroughly screened and trained.'' \2\ As part of 
the Intelligence Reform and Terrorism Prevention Act of 2004, Congress 
enacted the Private Security Officer Employment Authorization Act to 
allow Allied Barton and other private security officer firms to submit 
requests through the states to screen employees \3\ against the FBI's 
criminal history records. Unfortunately, for a variety of reasons, 
states have generally not exercised this authority and private security 
officer employers still cannot regularly screen prospective employees 
against the national database.
---------------------------------------------------------------------------
    \2\ P.L. 108-458, section 6402.
    \3\ References to ``employees'' in this statement should be 
understood to also include applicants.
---------------------------------------------------------------------------
    Mr. Chairman, I know from my experience at the FBI how important it 
is to obtain timely criminal history record checks. In my years with 
AlliedBarton, I have seen how important it is in the private security 
officer context as well. My testimony today briefly discusses why this 
access is so important and how it has worked--and not worked--for 
AlliedBarton over the last two years.

  II. RELIABLE PRIVATE SECURITY OFFICERS ARE CRUCIAL TO OUR NATION'S 
                                SECURITY

    Private security officers provide a primary line of defense for 
much of our country, securing countless lives and tens of thousands of 
important and valuable sites from coast to coast. The Intelligence 
Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458) found 
that ``the threat of additional terrorist attacks requires cooperation 
between public and private sectors and demands professional, reliable, 
and responsible security officers for the protection of people, 
facilities, and institutions.'' Noting that the private sector controls 
85% of the critical infrastructure in the nation, the 9/11 Commission 
concluded that, ``unless a terrorist's target is a military or other 
secure government facility, the `first' first responders will almost 
certainly be civilians.'' \4\
---------------------------------------------------------------------------
    \4\ The National Commission on Terrorist Attacks on the United 
States (``9/11 Commission''), The 9/11 Commission Report: Final Report 
of the National Commission on Terrorist Attacks on the United States, 
397-98 (July 2004).
---------------------------------------------------------------------------
    Those civilians are likely to include private security guards, 
counted on as the prime protectors of homes (apartment buildings, 
dormitories, and private communities), offices, financial institutions, 
factories, public sector facilities, hospitals and other critical 
elements of the infrastructure of our nation. For the safety of the 
people at these locations and the facilities involved, the companies 
employing these private security officers want to do all that we 
reasonably can to ensure that the officers we hire are trustworthy and 
not likely to commit violence or, at worst, aid or support terrorists. 
At a minimum, this requires that our companies have a reliable and 
timely way of learning about any serious criminal history of our 
applicants and employees.
Reliable Criminal History Checks Require Access to FBI-Maintained 
        Records
    The Attorney General's Report concluded that a comprehensive and 
reliable criminal history background check cannot be accomplished 
without timely access to the records of the Criminal Justice 
Information Services Division of the Federal Bureau of Investigation. 
We agree. Let me explain why this is so important.
    Without access to federal records, the only records available to an 
employer are those in the states and their political subdivisions, 
where the records are typically kept at the courthouse in each county. 
Since there is no practical way to check all 3,000 clerks of court 
around the country for every employee, employers usually will request a 
record check in the counties in which the applicant says they have 
recently lived or worked. This leaves the employer blind to any 
criminal history records in states for which the applicant failed to 
disclose contacts. How can employers rely on a system to weed out 
untrustworthy or dangerous applicants when that process necessarily 
depends on the honesty and forthright nature of every applicant?
    There are commercial databases that aggregate criminal history 
information from multiple states but, as the AG Report found, these are 
not truly national in scope because not all states, courts, or agencies 
make their records available to such compilers. Moreover, these 
databases are only updated occasionally and, thus, may lack current 
data. These commercial databases, therefore, are not adequate 
substitutes for screening against the FBI-maintained database.
    Congress acted in 2004 to provide private security officer 
employers with access to that federal database. Unfortunately, in doing 
so, Congress required that the employers always go through the state 
identification bureaus in order to get that access. In other words, we 
must submit the employee information to the state bureau, which then 
decides whether to forward the request to the federal level.
    We work closely with state regulators of private security officers 
and, for the most part, they fully and competently fulfill their state 
role. However, the states with which we work have not prioritized the 
next step of seeking an FBI records check, despite the 2004 statute 
permitting them to do so. In addition, several states have no 
background check process at all. Thus, without direct access to the 
FBI-maintained database, AlliedBarton and other security officer 
employers have no way to verify applicants' backgrounds in these 
states.
    It is equally important that record checks be completed in a timely 
manner. Significant delays in getting responses to criminal history 
record requests are unfair to employers and applicants, and present 
potential security risks. Hiring needs are typically time-sensitive, 
which means either passing over the applicant because the records are 
not in, or, where permitted, placing a private security officer 
applicant ``on the job'' pending the results of a state background 
check--leaving potentially unreliable and dangerous persons as the 
protectors of loved ones and valuable sites for weeks.
    The Attorney General's Report found that the processing time for 
states, from the date of the fingerprint capture to the date of 
submission to the FBI ranged up to 42 days.\5\ This is consistent with 
AlliedBarton's experience over the last 2 years under the current 
statute.
---------------------------------------------------------------------------
    \5\ Id at 22.
---------------------------------------------------------------------------
              III. RECOMMENDATIONS: PROTECTING OUR NATION

    To address these problems, the AG's Report recommends that private 
sector employers be able to screen job applicants against the FBI's 
criminal history records, with the states serving as employers' primary 
access point for criminal background checks only if they can meet 
standards set by the Attorney General. The Report recommends, ``In 
order to participate, states must meet standards specified by the 
Attorney General, within parameters set by statute, for the scope of 
access and the methods and time frames for providing access and 
responses for these checks.'' \6\ Specifically, the Attorney General 
concluded, ``A participating state or the FBI should be required to 
respond to an enrolled employer, entity, or consumer reporting agency 
within three business days of the submission of the fingerprints.'' \7\
---------------------------------------------------------------------------
    \6\ Id at 87.
    \7\ Id at 94.
---------------------------------------------------------------------------
    Importantly, this means that an employer in a state that cannot, or 
chooses not to, provide timely background check results that 
incorporate both state and FBI data should be able to make direct 
requests to the FBI, through an entity designated by the Attorney 
General, for criminal history records. The Attorney General's Report 
stated it this way: ``Access to FBI-maintained criminal history records 
should be available to employers when states do not opt to participate, 
either because they lack the authority, the resources, or 
infrastructure (such as system capacity) to process such checks, or 
because the access they can offer is limited in scope or does not meet 
the national standards set for this system.'' \8\
---------------------------------------------------------------------------
    \8\ Id at 88.
---------------------------------------------------------------------------
    Based on our experience, we strongly support this recommendation 
and urge Congress to strengthen current law by providing statutory 
authority for such access.
    There are sound reasons for employers seeking comprehensive 
criminal histories to also check state repositories. The Attorney 
General's Report noted that the ``rationale for requiring the 
submission of fingerprints through a state record repository is based 
on the fact that the FBI-maintained records are not as complete as the 
records maintained at the state level.'' \9\ The FBI's records also 
have more limited information regarding disposition of arrests, with 
only 50 percent of its arrest records containing final dispositions, 
compared to the states that range from 70 to 80 percent.\10\ Thus, even 
if employers are permitted to submit requests without first going 
through the state, they are likely to use the federal response as an 
indicator of which states contain records regarding the employee, and 
then they will check the records in those states. This process, 
however, will avoid the delays involved in having to go through the 
states just to get the FBI response.
---------------------------------------------------------------------------
    \9\ Id at 27.
    \10\ Id.
---------------------------------------------------------------------------
Guaranteeing Employee Protections
    AlliedBarton's experience indicates that the protections afforded 
to employees that Congress wisely included in the Private Security 
Officer Employment Authorization Act have worked well to protect 
important privacy rights, ensure the fairness of the process, and 
support essential policies to promote appropriate re-entry of ex-
offenders. These protections are consistent with the recommendations in 
the Attorney General's Report and include:

          Written, informed consent of the employee

          The opportunity for the employee to review the 
        information received

          Specific qualifying crimes, where states do not have 
        their own standards

          Criminal penalties for misuse of the criminal history 
        information

                             IV. CONCLUSION

    In conclusion, I want to thank you again for the opportunity to 
address the Subcommittee today. The Attorney General's Report rightly 
recognized a serious homeland security issue, and has provided very 
helpful recommendations to remedy that problem. I'm confident that 
implementing these recommendations as applied to the private security 
industry--specifically by insuring employers' timely access to FBI 
criminal records while preserving employee rights--will make our nation 
safer.

    Mr. Scott. Thank you.
    Mr. Davis?

TESTIMONY OF ROBERT F. DAVIS, INTERNATIONAL VICE PRESIDENT AND 
 NATIONAL LEGISLATIVE DIRECTOR, TRANSPORTATION COMMUNICATIONS 
               INTERNATIONAL UNION, ROCKVILLE, MD

    Mr. Davis. Chairman Scott, Ranking Member Forbes and 
Members of the Committee, thank you for the opportunity to 
speak to you today on the subject of criminal background checks 
for employees of railroad contractors.
    My name is Robert Davis, and I am an international vice 
president and the national legislative director of the 
Transportation Communications Union, commonly known as TCU.
    TCU is a labor organization representing employees, most of 
whom are employed in the railroad and related industries, 
including employees of contractors providing service to the 
railroads.
    Let me emphasize at the start that there is nothing more 
important to our union than the safety and security of our 
members. We acknowledge that some control over access to 
railroad property is an important component of assuring their 
safety.
    Consistent with legitimate security concerns, we must also 
protect employees subject to background checks from arbitrary 
loss of employment by providing them with fundamental 
procedural protections. This is one of the most important 
aspects in assuring accuracy in criminal background checks.
    During 2006, each of the four major Class I railroads, 
including the Burlington Northern Santa Fe (NSF) implemented a 
program requiring its contractors to use the services of e-
RAILSAFE to conduct background checks, including the criminal 
background, of their employees.
    The railroads advised their contractors that this program 
was adopted to meet ``government security recommendations, 
directives and regulations.'' There are, however, no such 
government requirements.
    While this background check program raises serious 
questions of equity, our current labor laws do not afford a 
meaningful avenue for redress. As an example, Transportation 
Communications International Union (TCU) has, for many years, 
represented employees of Pacific Rail Services employed in 
Seattle, Washington. PacRail provides the labor to load and 
unload freight at an intermodal yard owned by the BNSF.
    This yard is adjacent to a port facility where freight is 
routinely transferred between BNSF and ocean-going vessels. In 
the fall of 2006, BNSF advised PacRail that its employees would 
be required to participate in the e-RAILSAFE background check 
program.
    PacRail employees were required to sign a waiver 
authorizing e-RAILSAFE to obtain consumer reports, including 
any reports providing information on the employees' ``character 
and general reputation.''
    No explanation was offered to the employees or TCU as to 
which criminal offenses would disqualify them from entering 
BNSF property. No explanation was offered as to what mitigating 
factors, if any, would be considered.
    While there is an appeal process, that process is totally 
controlled by BNSF, with no redress before a true neutral. BNSF 
has refused to respond to requests from TCU and PacRail for 
information about this program.
    As a result of this background check program in Seattle, 
two employees lost several weeks of employment, and one has 
permanently lost employment.
    While these employees had criminal records, PacRail was 
well aware of this fact from the time they were hired. Each of 
these employees had worked for PacRail for several years 
without incident, and absent BNSF's demands, PacRail would have 
taken no disciplinary action against them.
    To summarize, employees who honestly reveal their criminal 
records at the time of hiring, after years of an unblemished 
work records, have been barred from entering their work site 
because of their criminal records, which were previously known 
by their employer.
    While these actions were supposedly taken in the name of 
security, no explanation was offered as to how these employees 
are security risks.
    The so-called appeal process controlled by the BNSF has 
refused to give information to the contractor or the affected 
employees.
    While BNSF designed and imposed the background check 
program, it was not obligated to bargain or arbitrate with TCU 
about this program, since TCU's collective bargaining 
relationship for the involved employees is with PacRail, not 
BNSF.
    TCU has filed a grievance over the implementation of this 
program with PacRail. PacRail has defended its actions by 
maintaining that it had no choice but to put this program into 
effect at the insistence of BNSF.
    BNSF, not PacRail, barred these employees. This matter is 
currently pending arbitration. We will soon learn the outcome.
    But even assuming that the arbitrator finds PacRail 
violated its collective bargaining agreement, he will be unable 
to provide the employee who has been permanently barred from 
his workplace with the traditional remedy of reinstatement.
    Traditional collective bargaining and arbitration have 
proven totally ineffective. Since the tools the law currently 
provides employees and their unions are not up to this task, we 
have turned to Congress to deal with this issue.
    The port security Transportation Workers Identification 
Credential (TWIC) program mandates a robust appeal and waiver 
process with the right to redress before an administrative law 
judge.
    We want to add our voices to those supporting H.R. 1401, 
the ``Rail and Public Transportation Security Act of 2007.''
    This bill provides for a waiver process much like the TWIC 
program so that affected employees can demonstrate, through 
rehabilitation or other factors, that he is not a security 
risk. It provides a meaningful appeal process and, most 
importantly, a meaningful redress process.
    Significantly, these procedures bind the rail carriers and 
their contractors and therefore provide the basis for relief.
    Again, thank you for this opportunity to testify, and I 
will be happy to answer any questions the Committee has.
    [The prepared statement of Mr. Davis follows:]

                 Prepared Statement of Robert F. Davis

    Chairman Scott, Ranking Member Forbes and members of the Committee, 
thank you for the opportunity to speak before you this day on the 
subject of efficiency and accuracy in criminal background checks for 
employees of railroad contractors. My name is Robert Davis, and I am an 
International Vice President and National Legislative Director of the 
TransportationCommunications International Union, an affiliate 
of the International Association of Machinists, referred to as TCU.
    TCU is a labor organization representing approximately 45,000 
active employees, most of whom are employed in the railroad and related 
industries. TCU represents employees employed in the clerical, carman 
and supervisor crafts and classes employed by each of the nation's 
Class I railroads, Amtrak, and various commuter authorities. In 
addition, TCU represents the employees of some of the contractors 
providing service to the Class I railroads.
    Let me emphasize at the start that there is nothing more important 
to our union than the safety and security of our members. We accept 
that some control over access to railroad property is an important 
component of assuring their safety. Consistent with legitimate security 
concerns, we can, and we should, also protect employees subject to 
background checks from arbitrary loss of employment, providing them 
with fundamental procedural protections. This is one of the most 
important aspects in assuring accuracy in criminal background checks.
    During 2006 each of the four major Class I carriers--Union Pacific 
Railroad (UP), Burlington Northern Santa Fe Railroad (BNSF), CSXT and 
Norfolk Southern Railroad (NS)--implemented a program requiring its 
contractors to use the services of e-RAILSAFE to conduct background 
checks, including the criminal background, of their employees.\1\ Each 
of these carriers advised their contractors that this program was 
adopted to meet ``government security recommendations, directives, and 
regulations.'' As acknowledged by the President of the Association of 
American Railroads, and a representative of the Department of Homeland 
Security, in their testimony before the Subcommittee on Transportation 
Security and Infrastructure on February 16, 2007, this claim was 
erroneous.\2\ There are no requirements for employee criminal 
background checks for railroad contractors. As I will demonstrate, 
where such background checks are required, unlike the railroads' 
program, federal law affords important protections to affected 
employees.
---------------------------------------------------------------------------
    \1\ As a result of this program, several employees of a UP 
contractor were denied access to their work site in the Chicago area 
because they had failed this background check. The affected employees 
are represented by the Teamsters, and a representative of that 
organization also testified at hearings held February 16, 2007, by the 
Transportation Security and Infrastructure Subcommittee.
    \2\ We thank Chairman Conyers for his interest in this issue and 
his attendance at that hearing.
---------------------------------------------------------------------------
    The implementation of this background check program raises serious 
questions of equity. Even where there is a collective bargaining 
relationship with a contractor, our current labor laws do not afford a 
meaningful avenue for redress. In order to make this point, I will now 
describe in some detail how this program impacted the employees of 
Pacific Rail Services, referred to as PacRail, who are represented by 
TCU.
    TCU has for many years represented PacRail's employees employed in 
Seattle, Washington. PacRail provides the labor to load and unload 
freight at a rail yard owned by the BNSF. This yard is adjacent to a 
port facility where freight is routinely transferred between BNSF and 
ocean-going vessels. PacRail's employees work in close proximity to 
longshoremen responsible for the loading and unloading of cargo. The 
BNSF facility in Seattle is commonly referred to as an intermodal yard. 
The facility provides a critical link between rail, ship and truck 
modes of transportation.
    In the fall of 2006 BNSF advised PacRail that its employees would 
be required to participate in the e-RAILSAFE background screening 
program. As a result PacRail's employees were required to sign a waiver 
authorizing e-RAILSAFE to obtain consumer reports including any reports 
providing information on the employees' ``character and general 
reputation.'' No explanation was initially offered to PacRail's 
employees or their union as to the need for such a broad waiver, 
though, in response to subsequent inquiries, TCU was advised by PacRail 
that the broad waiver was needed to assure the accuracy of the criminal 
background check. No further explanation was given. No explanation was 
offered to employees or TCU as to which criminal offenses would 
disqualify them from entering BNSF property. No explanation was offered 
as to what mitigating factors, if any, were to be considered. While 
there is an appeal process, that process is totally controlled by BNSF, 
with no redress in front of a true neutral.
    As a result of this background check, two employees lost several 
weeks of employment, and one has permanently lost employment. While 
these employees had criminal records, PacRail was well aware of this 
fact from the time they were hired. Each of these employees had worked 
for PacRail for several years without incident, and absent BNSF's 
demands, PacRail would have taken no disciplinary action against them.
    BNSF imposed the requirement that PacRail employees undergo 
criminal background checks, designed the process for the background 
check, dictated the scope of the employee waiver, selected the company 
that conducted the background check, and designed the appeal process, 
which it controlled. Though BNSF maintains that it is responsible only 
for barring affected contractor employees from their property, and not 
for their termination of employment, the effect of the system is to 
deny PacRail employees an opportunity to work. Though BNSF designed, 
imposed and controlled the background check procedures, it was not 
obligated to bargain or arbitrate with TCU about that program, since 
TCU's collective bargaining relationship for the involved employees is 
with PacRail, not BNSF.
    Under the National Labor Relations Act, PacRail is obligated to 
bargain over this program with TCU, but since it was not the moving 
party, there was no basis to engage in meaningful bargaining with the 
party responsible for their program. TCU filed unfair labor practice 
charges against PacRail for failing to bargain over this background 
check program, but investigation of these charges has been deferred 
pending arbitration. Further, PacRail was so uninvolved with the 
program that it was unable to respond to TCU's information requests, 
nor was it able to get BNSF to do so. BNSF also declined to respond to 
TCU's direct requests to it for information about this program.
    To summarize, employees who honestly revealed their criminal 
records at the time of hiring, after years of an unblemished work 
record, have been barred from entering their work site because of their 
criminal records about which their employer was well aware. While these 
actions were supposedly taken in the name of security, no explanation 
was offered as to how these employees are security risks. While there 
is an appeal process, it is controlled by the railroad, and BNSF has 
refused to provide its contractor, the affected employees, or their 
union the most basic information about this process. It is hard to 
believe this situation is happening in America. And to make it even 
worse, this entire mess has been justified by the railroads as stemming 
from their compliance with non-existent requirements from the 
Department of Homeland Security.
    TCU has filed a grievance over the implementation of this program 
with PacRail. PacRail has defended its actions by maintaining that it 
had no choice but to put this program into effect at the insistence of 
BNSF and that BNSF, not it, barred employees from going to work. This 
matter is pending arbitration, and we will soon learn whether the 
arbitrator accepts this defense. But even assuming the arbitrator finds 
that PacRail violated its collective bargaining agreement with TCU, he 
will be unable to provide the employee who has been permanently barred 
from his work place with the traditional remedy of reinstatement. Since 
BNSF is not party to the collective bargaining agreement, it will not 
be bound by the arbitrator's decision, and the arbitrator has no means 
to require BNSF to permit the employee onto its property.
    Traditional collective bargaining, negotiations, information 
requests, grievances, and arbitration have proven totally ineffective 
to deal with this issue. Since the tools the law currently provides 
employees and their unions are not up to the task, we have turned to 
Congress to deal with this issue. We believe at a minimum that simple 
fairness and traditional concepts of fundamental due process require 
that (1) a time period be established for considering felony 
convictions; (2) a background check procedure be transparent--the list 
of disqualifying felonies be clearly articulated for all interested 
parties; (3) there be a nexus between the involved felonies and 
homeland security--rail contractor employees should be subjected to no 
greater scrutiny than Congress has imposed on port employees; (4) 
mitigating factors such as the facts surrounding the conviction and 
rehabilitation should be considered; and (5) there be a meaningful 
appeal process where a disqualifying decision could relatively promptly 
be reviewed by a true neutral.
    The Transportation Worker Identification Credential (TWIC) program 
called for in the Port Security Act of 2006 already provides these 
protections to longshoremen and truck drivers carrying hazardous 
materials. PacRail employees work closely with both. The TWIC program 
was passed with bipartisan support in Congress and signed into law by 
President Bush.
    The TWIC program calls for a robust appeal and waiver process with 
the right to redress before an Administrative Law Judge. The TWIC 
program lists specific crimes by statute for which an employee could be 
disqualified and provides that such crimes must have direct nexus to 
``terrorist and security risk.'' The railroads' original appeal 
process, as well as recently revised procedure, contains none of the 
protections of the TWIC program.
    Fortunately Congress is in the process of addressing this problem. 
We want to add our voices to those supporting the Perlmutter Amendment 
to the Public Transportation Act, Section 120 of H.R. 1401. We thank 
Congresswoman Jackson Lee for being a co-sponsor of that amendment. 
That amendment provides for a waiver process in which the affected 
employees can demonstrate that through rehabilitation or other factors 
he is not a security risk, a meaningful appeal process, and, most 
importantly, a meaningful redress process. Significantly, these 
procedures bind the rail carriers and their contractors and, therefore, 
provide the basis for relief. We believe that fundamental fairness 
warrants support of this bill, which we understand has been passed by 
the House. A companion bill has been passed by the Senate, and the two 
bills are heading to conference committee. We are hopeful that the 
conference committee report will retain the protections described above 
and that a bill will soon be on its way to President Bush.
    Thank you again for this opportunity to testify.

    Mr. Scott. Thank you, Mr. Davis.
    We have been joined by the gentleman from Georgia, Mr. 
Johnson.
    We will now ask questions. We will be subject to the 5-
minute rule. And I will recognize myself first for questions.
    First, Mr. Davis, are workers still being denied employment 
because of the background checks?
    Mr. Davis. Yes, sir, they are. The two that I indicated 
that were suspended for quite some time--they, in fact, are 
back. The other individual is still barred from the property, 
as the B.N. says. And there is also a similar situation in 
Chicago----
    Mr. Scott. Well, is it clear that the Federal Government is 
not requiring that result?
    Mr. Davis. Yes, it is clear that they are not requiring 
that result.
    Mr. Scott. Okay.
    Mr. Davis. That was so stipulated, as a matter of fact, in 
a hearing before the Homeland Security Committee by the 
president of the AAR, Mr. Hamburger.
    Mr. Scott. Okay.
    Does anybody think that it is appropriate to release to 
employers records of arrests as part of the record?
    No one feels that way? Okay.
    Ms. Dietrich, should the employer have the right to use its 
own judgment to decide what record would disqualify somebody 
from a job?
    Ms. Dietrich. I suppose it depends how they exercise that 
judgment. I certainly would agree----
    Mr. Scott. Well, not whether they are exercising good 
judgment or bad judgment, but should that be the right of the 
employer?
    Ms. Dietrich. It depends what industry we are talking 
about. I understand that there are some industries in which 
Congress and the State legislatures will mandate certain 
background criteria, and I--where there are particularly 
vulnerable populations at risk. And that is sort of taken away 
from them there.
    In other cases, I think there should be at least a 
recognition that across-the-board bars of people with records 
should not be permitted to happen.
    Mr. Scott. You are not talking about it is bad judgment. 
You said it should be illegal?
    Ms. Dietrich. Yes.
    Mr. Scott. If an employer has a choice of someone with a 
record and someone without a record, should they not be able to 
discriminate in favor of the one without a record?
    Ms. Dietrich. Not under Title VII, sir. There is a 
requirement that they use a business necessity in order to 
simply disqualify people whose records don't allow them to 
satisfy their hiring needs.
    Mr. Scott. Is that under Title VII?
    Ms. Dietrich. Yes.
    Mr. Scott. That would require a disproportionate--disparate 
impact.
    Ms. Dietrich. That is correct. Now, some States also have 
laws that prohibit people from being rejected unless there is a 
relationship between the job and the record.
    So for instance, in Pennsylvania, we have such a law, but 
still there is obviously a lot of wiggle room that the 
employers have under that law because, as I described, many 
Pennsylvanians are losing jobs for records that are not related 
to the job they applied for.
    Mr. Scott. Now, you mentioned the background screening--
that we have laws involving background screening, like you have 
fair credit reporting laws. Are there any sanctions if the 
records are being released with significant inaccurate 
information?
    Ms. Dietrich. Under the Fair Credit Reporting Act, there is 
a requirement that background checkers use maximum reasonable 
efforts to get the information correct. But the sanctions 
there, of course, are either that the FTC has to enforce that, 
or that there be a private lawsuit.
    And so far, there are only a dozen, fewer than a dozen, 
cases that have been brought against the background screening 
industry for violations of that law.
    Mr. Scott. Is there any statute of limitations, Ms. 
Dietrich, about how long something ought to stay on your 
record?
    Ms. Dietrich. I would argue that it is----
    Mr. Scott. With credit, you can't include stuff that is 
very old, is that right?
    Ms. Dietrich. That is correct. For arrest information, 
FCRA--Fair Credit Reporting Act--limits it to 7 years. However, 
in 1998 Congress eliminated the 7-year restriction for 
convictions.
    It used to be there was a 7-year limitation that background 
checkers could report convictions, but Congress eliminated that 
and made it an open-ended amount of time.
    Mr. Scott. Now, where is the prohibition against--if you 
get a record, it would not include any arrests more than 7 
years old?
    Ms. Dietrich. Yes, that is part of the more general 
obsolete information provisions of the Fair Credit Reporting 
Act.
    Mr. Scott. What about record checks? Is that under the Fair 
Credit Reporting Act?
    Ms. Dietrich. Yes. Yes, if they are being done by 
background check companies. If a public source of information 
is used by an employer--let's say somebody goes to the 
Pennsylvania State Police or to the Philadelphia courts--the 
Fair Credit Reporting Act does not apply there. But it does 
apply to the background check companies.
    Mr. Scott. So if someone went and got direct access to the 
FBI report, it would include all arrests and all convictions as 
far back as you can go.
    Ms. Dietrich. As far as I know, unless different standards 
were laid out by Congress.
    Mr. Scott. Mr. Campbell, is there any--is that right?
    Mr. Campbell. Well, our recommendations don't recommend 
that the raw rap sheet be provided to the employer if this kind 
of expanded access is allowed.
    We do a number of--we make a number of recommendations in 
that regard. First, we say that there be an effort to find 
missing dispositions, and that the repositories be given up to 
3 business days to find those dispositions if there are arrests 
that don't have them.
    We also suggest that we screen the records in accordance 
with State and Federal consumer reporting laws and any other 
State laws that might restrict the use of criminal history 
information by employers, so we respect the policies underlying 
those laws.
    We also indicate that the records should be designated as a 
felony, a misdemeanor, or some lesser offense, something which 
doesn't happen in the raw rap sheets now.
    We also recommend that rap sheets be standardized so that 
they are more easily comprehensible by non-criminal justice 
users.
    We also recommend that in order to get access to these kind 
of records, employers be certified in reading and interpreting 
criminal records before they can even get access, that they 
have some kind of training in reading and interpreting records, 
and that a Web site and toll-free assistance number be provided 
so that employers can get assistance if they need it in 
interpreting the records.
    So I think there is a series of--to the extent that we 
expand this to the private sector, we have recommended that not 
just the raw FBI rap sheet, which is used by criminal justice 
agencies, be disseminated, but rather a series of steps be done 
to screen them and make them more usable.
    Mr. Scott. Thank you.
    Mr. Forbes?
    Mr. Forbes. Thank you, Mr. Chairman.
    And thank all of you again for being here and for your 
expertise.
    Ms. Dietrich and Mr. Clarke, I would like to ask your 
impressions on something that is just a dilemma to me. I don't 
know the answer to this.
    But over and over again, on some of the hearings that we 
have come before us, we pound on employers because we say that 
they are hiring people here illegally and they are not checking 
those people to see whether or not they should be in the 
country and whether they have their documentation.
    And the reason we hear is because we need so many positions 
filled for jobs. And I know that is what employers are telling 
me over and over again, ``We have all these jobs that we 
need.''
    Then we have a hearing like this that we come in and say, 
``All these employers are fighting to keep people and not hire 
people because they are finding anything they can on their 
records to keep from hiring them.''
    And I know that is true. I am not disagreeing with that. 
But the question I have is what is the motivation for these 
employers. Do we also need to look at some of our tort 
liability laws?
    Because I know, Mr. Clarke, in your situation, you are 
saying we need people--we are dealing in the security industry, 
and we want people that we can market and people feel safe.
    And, Ms. Dietrich, I am hearing over and over again from 
employers, ``The reason we do this is because if we slip up one 
time, we are going to just get nailed, and it is not whether we 
lose the suit or not, it is the cost of litigation over and 
over again because somebody is going to say we didn't check out 
everything we should.''
    What is your response, both of you, to the tort situation 
that our employers are in?
    Ms. Dietrich. I couldn't agree more. I think it is 
necessary to take a look at the extent to which employers are 
put sometimes in a Catch-22.
    I, frankly, think that often that is sort of oversold as a 
reason for doing this, because there are, I think--and part of 
it is tort liability. That is a concern. Part of it is that 
everybody is doing it, and somehow you are not conducting your 
human resources correctly if you are not doing it.
    But tort liability, if those laws were addressed, would 
certainly help people with records get jobs.
    Mr. Forbes. Mr. Clarke?
    Mr. Clarke. I don't think that tort liability motivates us.
    Mr. Forbes. No, but other employers.
    Mr. Clarke. I don't know how to answer that specifically, 
but ours is mainly to be sure that we know that we are not 
putting people into a job that they are supposed to be 
providing security when, in fact, they represent a high 
security risk.
    We just need to be sure--and especially when you consider 
that 85 percent of this country's critical infrastructure is 
owned by the private sector, and our society is depending upon 
the private sector to provide adequate security for those 
industries.
    Mr. Forbes. Mr. Campbell, if we adopt the recommendations 
of the A.G.'s 2006 report, and we basically are kind of opening 
some floodgates for requests to the FBI, would this inhibit in 
any way the FBI's primary mission of servicing the criminal 
justice community?
    Mr. Campbell. Well, one of the main conditions that we 
think needs to be included is the authority of the Attorney 
General to scale the system and only grant access to priority 
employers as the system can handle the demand, without 
interfering with the law enforcement and national security uses 
of the system.
    So there is excess capacity to a certain extent now. We 
also know that there are many national security type uses that 
will be coming down the road that will increase demand on the 
system.
    So obviously, this can only be expanded as the system 
allows for its use beyond those primary uses of the system.
    Mr. Forbes. The A.G.'s report recommends authorizing 
dissemination of the records to the employer or consumer 
reporting agency acting on the employer's behalf, but it is 
limited by several suggested rules, including ensuring accurate 
reports.
    Would the FBI be responsible for ensuring that accuracy? 
And wouldn't that really require the FBI to obtain literally 
thousands of unreported dispositions? And basically, can the 
FBI comply with all these requirements?
    Mr. Campbell. Well, I think the idea behind the report is 
that we recognize the problems posed by missing dispositions 
when the records go out to private employers and suggest that 
the FBI and the repositories do seek to complete those 
dispositions.
    It will cost more money. Obviously, that effort will take 
additional resources and will have to be added to any fee that 
is charged to the user in getting the information.
    The other thing we recommend in that regard--and this goes 
beyond the FCRA--is that the individual be provided an 
opportunity to see their record before they apply for the 
position so they can correct it before they apply; also, that 
they see it before it goes to the employer so if they see an 
inaccuracy there, they have a chance to correct it before the 
cat is out of the bag, so to speak, and they can correct the 
record, as well as before adverse action.
    So we recommend a number of things that would help to 
protect an individual seeking dispositions and giving them the 
opportunity to review and challenge through an automated and 
streamlined appeal process.
    Mr. Forbes. And thank you all. We appreciate your work in 
this area. We know it is a very important area.
    And I yield back, Mr. Chairman.
    Mr. Scott. The gentleman from Georgia?
    Mr. Johnson. Thank you.
    Mr. Davis, you alluded to a situation involving the 
railroad workers in Chicago. Would you update us on that 
situation?
    Mr. Davis. Well, I just have passing knowledge of it, but I 
will tell you what I do know about it. First of all, the same 
as the situation in Seattle.
    These employees worked for a contractor, not directly for 
the railroad, and they were dismissed under the same type of 
circumstance that I described in Seattle, that the e-RAILSAFE 
criminal background check revealed something or other that the 
railroad in Chicago that employs the contractor didn't like and 
so they ``barred them from the property.''
    I am not sure at this point where that matter stands as far 
as either legally or through an arbitration procedure or 
anything, because it involves a different union from mine.
    Mr. Johnson. All right. How many railroad workers, if you 
know, throughout the country have been harmed by criminal 
background record checks?
    Mr. Davis. Well, I can only speak to the ones that I know 
directly about--would be, as of this time, keeping in mind that 
this program only went into effect last year, the three that 
were in Seattle--and I am not exactly sure of the number in 
Chicago. I have seen numbers around 30 or a little more there.
    And there were a couple of other individuals that I am 
aware of, again in Chicago, a different contractor, a different 
company, early on, I would say maybe April of last year, but--
those are the only ones I have direct knowledge of.
    Obviously, we would only know about it if, in fact, one, 
the employees were represented by us or perhaps by some other 
union. If they worked for a contractor that is non-union then, 
you know, I wouldn't know about those.
    Mr. Johnson. All right. Thank you.
    Mr. Campbell, in the Attorney General's report to Congress, 
you wrote about the problem that FBI rap sheets are often 
incomplete.
    Can you explain how the FBI addresses this incompleteness 
problem in order to ensure that information is complete for 
purposes of conducting Federal gun checks?
    Mr. Campbell. Well, the Brady Act provides 3 business days 
in which the National Instant Criminal Background Check System 
can respond to a gun dealer on whether a prospective buyer is 
prohibited from possessing or receiving a firearm.
    And using those 3 business days, the NICS and the point of 
contact States that conduct background checks before purchases 
of guns in those States seek missing dispositions and other 
information that might reflect on the person's ability to 
purchase a firearm.
    So for example, if there is an arrest for a felony but 
there is no disposition, NICS personnel make efforts to obtain 
that disposition within 3 business days.
    If at the end of 3 business days the disposition is not 
found, the dealer is advised that the sale may proceed--or 
actually, they say the sale is delayed, but they can--under the 
Brady law they can transfer the firearm after 3 business days.
    NICS continues the search for the missing disposition for 
20 days after the initial call.
    Mr. Johnson. I see. And then if something is found within 
that 20 days, then--what happens?
    Mr. Campbell. They would contact the gun dealer to advise 
them, for example, if they find that the person was convicted 
of the felony and is, in fact, disqualified, they advise the 
gun dealer that they are changing the response to denied.
    And if the gun has been transferred, they refer that case 
to the ATF for retrieval of the firearm.
    Mr. Johnson. I see. And approximately how many times per 
year does that happen?
    Mr. Campbell. I would have to get back to you to give you 
exact numbers.
    Mr. Johnson. Well, approximately.
    Mr. Campbell. There are many thousands of cases where 
missing dispositions are not obtained within the 3 business 
days every year. I believe that is the case.
    Mr. Johnson. Well, from the standpoint of the weapon has 
then been transferred during that 20-day period, and the agency 
has to then get back with the dealer to let them know that the 
certification, if you will, has been rescinded, approximately 
how many times does that happen per year?
    Mr. Campbell. I think there are several reports that the 
FBI has put out that cite those numbers. I think they are in 
the range of 3,000 to 5,000 per year. I would have to look to 
give you exact numbers.
    But I think that is the number of cases where they find a 
disposition that shows the person was prohibited and they find 
out from the gun dealer that the gun was transferred, and then 
they refer the case to ATF.
    Mr. Johnson. And then do you have any idea as to how many--
on how many occasions does the ATF actually retrieve weapons 
from persons whom the authorization has been revoked?
    Mr. Campbell. I don't have those numbers with me, but I am 
sure the ATF can help us get those numbers to you, Congressman.
    Mr. Johnson. All right. Thank you.
    I will yield back.
    Mr. Scott. Thank you.
    And in order of appearance, the gentleman from North 
Carolina, Mr. Coble?
    Mr. Coble. Thank you, Mr. Chairman.
    Ms. Dietrich, employers who seek broad criminal history 
reports and do not have access to the FBI database--how do they 
get the reports?
    Ms. Dietrich. They can get them from a number of different 
sources. They can try to get them themselves from, say, State 
police, central repositories. They can send a runner over to 
the courthouse to look at the court records. Or they can buy 
something from a commercial vendor.
    Commercial vendors have different access, depending on what 
their situation is, so they may have their own databases that 
they have created from purchasing information from those other 
sources. They may send runners to the courthouses.
    They probably are searching in places where the person has 
lived in order to see whether they have a record there.
    Mr. Coble. And generally, is this reliable?
    Ms. Dietrich. Well, there are even problems with public 
records, to be quite honest.
    Mr. Coble. Yes.
    Ms. Dietrich. A lot of my work has to do with fixing public 
records that are incorrect as well.
    But often, in the translation, when you have somebody else 
running out to get the record for you, that is another level of 
evaluation of the information where they may or may not get it 
right.
    So in fact, in my practice, inaccurate records have become 
one of the growing issues that I have had to work on.
    Mr. Coble. Thank you.
    Mr. Hawley, if you will, elaborate a little more in detail 
about the Compact Council and the role of other organizations 
that are important contributors to the criminal history record 
information policy.
    Mr. Hawley. All right. The Compact Council, as I indicated 
in my remarks, was established to govern over the use of these 
records, State records and the FBI records, for a non-criminal 
justice purpose.
    It established a council that has 15 members. Of those 
members, 11 are State repository folks who are responsible for 
administering these records back in the States.
    One of the things that they have done is to recognize the 
importance of getting these records in a timely fashion. Their 
own record is suggesting that these records must be returned 
consistent with the turnaround time that is used for the NICS 
system.
    In addition to that, other entities that are involved 
include organizations like Global, which is an advisory group.
    And the reason that is important--there has been a lot of 
talk today about reading the rap sheet or understanding the 
criminal history record.
    And as I mentioned in my remarks, an awful lot of work has 
been done in that area to standardize on that. That would go a 
long way to enabling us to train and educate people to 
interpret those records.
    Global is an organization that works on that 
standardization. The FBI CJIS division has been involved for 
many years in standardizing that rap sheet along with the 
States.
    And all of those efforts are essential to us moving this 
forward in a positive way.
    Mr. Coble. I thank you, sir.
    Mr. Davis, in the PacRail example that you gave, do you 
know how BNSF obtained the criminal history records, since I am 
told that there are no requirements for criminal history 
background checks regarding railroad contractors?
    Mr. Davis. No, sir. Directly, I can't tell you that. All I 
can tell you is that together with the other major railroads in 
this country, BNSF retained--some people have said created--
this e-RAILSAFE company.
    They obtained the records. How they did it or where they 
got them, they won't tell us. They don't answer our questions--
they meaning the BNSF.
    Mr. Coble. But am I accurate when I say that there are no 
requirements----
    Mr. Davis. No, there are no requirements for the kind of 
work that these individuals do. There are requirements relative 
to hazmat and certain situations involving customs and things 
like that, but not in this particular area of work that we are 
talking about.
    Mr. Coble. I thank you.
    Thank you all for being with us.
    Mr. Chairman, I thank you and I yield back.
    Mr. Scott. Thank you, Mr. Coble.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Thank 
you for this hearing.
    And I thank the witnesses and apologize that we are 
holding, interestingly enough, another hearing on immigration, 
and some of the issues really overlap.
    Let me just, as a brief backdrop, indicate that I think we 
are all committed to this important question of security, but, 
more importantly, to have accurate information and to protect 
the workplaces.
    I am reminded of the week that we have experienced. This 
was not a worker, but this was a student--and had an 
unfortunate episode in their background. It was not a criminal 
history, but it certainly had to do with a mental instability. 
And the question is notice to people that they were associated 
with.
    Recently in Houston, at NASA, someone created havoc on the 
basis of a mental condition, not criminal. But we certainly 
would have wanted to have the information to be able, possibly, 
to protect the environment.
    I want to thank Mr. Johnson for asking the question. And in 
his absence, before I ask Mr. Campbell and Mr. Emsellem 
questions, Mr. Johnson posed a question to you, Mr. Davis. It 
so happens that I have direct and, I think, accurate 
information about that.
    Our Committee, under the leadership of Chairman Thompson 
and myself as the Homeland Security, Transportation Security 
Subcommittee chair, felt it was an important enough issue to 
hold a hearing and to correct it in a rail security bill.
    And we worked with Mr. Lungren, who is on this Committee, 
to respond to the utilization of information on the pretense 
that it had been required by the Department of Homeland 
Security, that there was a homeland security risk.
    And we corrected it to clarify that that was not the case. 
But we also corrected it to provide a procedure in that bill 
for individuals who might be charged with being ineffective 
because of either a criminal background or to suggest that it 
had a security impact.
    In this day, we are going to be using a lot of those issues 
to, I think, deny hard-working individuals the opportunity to 
work. And I am concerned.
    I think Mr. Clarke was very honest by saying that the 
private sector controls 85 percent of the critical 
infrastructure, another part of my Committee work in another 
hat. And I think that is an important review.
    But I want to--Mr. Campbell, I know that you have gone over 
this, so just for my sake, if you would--your office has 
acknowledged that the existing system is riddled with quality 
issues from substandard fingerprinting imaging to incomplete 
records.
    That is a big challenge to then release everyone's records 
with complete lack of sensitivity. And so I raise that question 
to you.
    And, Mr. Emsellem, if you would follow by reiterating or 
trying to get us to understand the impact of an arbitrary 
system, an unfair system, an arbitrary treatment of employees, 
that there are no meaningful limits, no guidelines.
    What impact does that have to the, if you will, sense of 
commerce moving back and forth but also the ability to be 
employed and also the ability of an employer to be fair?
    Mr. Campbell, what do we do with a system that seems to be 
fractured?
    Mr. Campbell. Thank you, Congresswoman. The recommendations 
we make make it clear that we are not recommending that if the 
private sector be provided access to this information that we 
provide the raw FBI rap sheet.
    We recommend that before any kind of response is provided 
that the record repositories make an effort for 3 business days 
to seek missing dispositions on arrests.
    So as you noted and as the report noted, approximately 50 
percent of the arrest records that the FBI has are missing 
dispositions.
    We would recommend that we would screen those records, and 
we would attempt to obtain those dispositions before those 
records are released.
    In addition, we recommend that if a record is to be 
released, we give the individual--that is incomplete in some 
respect, even if it is not necessarily obviously incomplete on 
its face, we give the individual the opportunity to see that 
record before it goes to the employer, so if they know 
something about the record that is incomplete or inaccurate, 
they have a chance to correct it before it goes to the 
employer.
    This goes beyond the protections that are currently 
provided under the Fair Credit Reporting Act. For example, that 
could relate not only to a missing arrest disposition, it could 
also relate to a conviction that has been expunged.
    And if there is no evidence that the conviction has been 
expunged, or if there are laws that say expunged convictions 
cannot be produced to employers, if the individual sees the 
record, they can take some kind of steps through an appeal 
process to correct the record.
    Ms. Jackson Lee. Thank you.
    Mr. Emsellem, you could finish the answer. Thank you.
    Mr. Emsellem. Yes. I mean, I would say our concern, which 
we tried to make clear in our testimony, is that this is a 
system that a lot of workers have to deal with now. There are 5 
million background checks--5 million rap sheets produced for 
employment purposes right now, and there is a big problem right 
now.
    We really appreciate and have great regard for the report 
and its recommendations to improve the standards, to create 
accuracy of records, but we are not aware of very much that is 
going on right now to take the problem and fix it.
    And as it applies to employment--FBI checks done for 
employment purposes--so just to, you know, give you an example, 
if it helps, in our testimony toward the back we represented a 
worker who went through the TSA process that was described 
earlier, very routine, where there is an incomplete record.
    As a result of the incomplete record which is on the rap 
sheet here, the person was denied a good job with a major 
carrier as a truck driver. This person was released and had one 
major felony on his record, but he was released from prison 
several years ago.
    He got a good job. This denial threatened the existence of 
his job and puts everybody back to the wrong place as a result. 
We were able to help them because there exists this waiver 
process and appeal process to clean up that record and get it 
right.
    We are trying to say that is what needs to be done now. I 
really appreciate all the recommendations about future things 
that need to be done. We are trying to say there is a big 
problem now that needs to be fixed.
    Ms. Jackson Lee. Thank you.
    Thank you, Mr. Chairman.
    Mr. Scott. The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Okay. Thank you, Mr. Chairman. I won't use all 
my time, but I appreciate the hearing. I think this is an 
important issue.
    I have had increasing concerns of the Orwellian nature, it 
seems like, of our government, the information they have 
obtained, the recent revelation about the abuse of the NSL 
records and information that it was obtained--also concerned 
about what some of you all have touched on.
    The safeguards that we need to----
    Mr. Scott. Would the gentleman suspend for just a moment?
    Mr. Gohmert. Yes.
    Mr. Scott. I advise the gentlelady from Texas that we are 
having a markup as soon as one more Member would walk in. And 
if you could remain, we would appreciate it.
    Thank you.
    Mr. Gohmert. Okay.
    And we do need a better ability to clean up the records, to 
make sure they are accurate. But I was shocked by one of the 
responses.
    If I understood correctly, when the Chairman asked do any 
of you--as I understood the question, do any of you feel that 
employers should have access to arrest records, and I didn't 
see anybody indicate to the affirmative.
    Nobody here believes that if we had accurate records, 
ability to clean them up easily enough when there is an error, 
that an employer--as Mr. Clarke indicated, 85 percent of our 
critical infrastructure is in the hands of private sector.
    And you are hiring a security guard that is going to 
protect enriched uranium that the whole world would pay 
millions of dollars to get, and you don't want to even know if 
they were arrested?
    Let me also advise you, we had a hearing down in New 
Orleans in the last few weeks, and we learned there that, you 
know, whereas New York has six murders per 100,000 people, 
before Hurricane Katrina New Orleans had 50 murders per 100,000 
people.
    And since this D.A. went into office, only one in 10 are 
arrested for those murders, and if you are arrested, only 12 
percent are ever convicted.
    You also could have an example, say, hypothetically--I 
realize this is far-fetched. Say you had some guy in a 
university who goes around and kills over 30 students in cold 
blood and doesn't kill himself but is arrested and is acquitted 
at trial for insanity.
    Now, you are hiring security guards to protect enriched 
uranium or to protect school children. None of you would want 
to know if a potential guard had been arrested?
    And I realize, Mr. Clarke, you said you are not motivated 
by tort liability. Are you a privately--you work for a 
privately held company or a publicly traded?
    Mr. Clarke. It is privately held.
    Mr. Gohmert. Okay, because publicly traded, if you make 
that statement, you are in trouble, because the stockholders 
have a right to have you concerned about tort liability. All 
right.
    Now I am going to go back to the question. Anybody want to 
answer? You are not concerned about arrest records, wouldn't 
want to know?
    Mr. Clarke. The reason I didn't respond to that--because it 
is not an easy question to answer ``yes'' or ``no'' to. 
Absolutely, I, as a security service provider, would definitely 
want to know that.
    But in terms of looking at how you would structure a 
process that is fair, there could be guidelines set up that the 
employer themselves never see the rap sheet, that the standards 
are set up so that when it is processed through the entity that 
has been described, we will get either a red light or a green 
light in terms of whether we could hire them or not.
    The other part of that question also deals with, you know, 
if a person is arrested and acquitted, I am not sure that that 
kind of information should be floating out there in the hands 
of all employers.
    Mr. Gohmert. If he is acquitted by reason of insanity so 
there is--because some States have that provision. If you are 
acquitted by reason of insanity, you are acquitted. You 
wouldn't want to know that?
    Mr. Clarke. I definitely would want to know that. And you 
have an individual who is arrested multiple times for sex 
offenses and acquitted, or for one reason or another the 
prosecution ends up finding them innocent, and you are trying 
to hire somebody to provide security at a grade school 
facility, would I want to know that he has been arrested? 
Absolutely, I would want to know that.
    I think that is part of how we describe how this process, 
in fairness, is vetted so that it is applied equally, uniformly 
and consistently. But I think that is all part of this--that we 
need to get to as to how it is processed. And if it is----
    Mr. Gohmert. Okay. My time has expired.
    But let me just hear from one other person.
    Mr. Campbell. I will say, Congressman, that my 
understanding is that many of the--or at least some of the 
State laws that authorize access to FBI fingerprint checks have 
criteria, suitability criteria, that include arrest records as 
being relevant to the question of suitability.
    And one of the examples I frequently heard is that when 
there is a requirement for background checks on school bus 
drivers, if there are a series of drunk driving arrests, that 
can disqualify the individual for employment.
    And I also know, for example, in the area of gun background 
checks, one of the disqualifiers under the gun control act is 
an unlawful user or possessor of illegal drugs. And the ATF 
regulations define----
    Mr. Gohmert. And a lot of States have a disqualifier as 
being domestic violence as well, but anyway.
    Mr. Campbell. But there are circumstances where arrests are 
clearly thought to be relevant. And I believe the EEOC's 
guidelines----
    Mr. Gohmert. Well, I certainly think so, but I was 
surprised that nobody from the panel indicated so.
    Thank you, Mr. Chairman.
    Mr. Scott. The gentleman from California?
    Mr. Lungren. Thank you very much, Mr. Chairman.
    There are so many questions to ask. I mean, we stand here 
and we talk about the records system as if it is a perfect 
system.
    When I took over the California Department of Justice in 
1991, we had the most advanced fingerprint automated system in 
the world, largest, and the FBI was still doing manual checks.
    But at the same time we were doing that, our disposition 
records--we were hundreds of thousands behind in disposition 
records. We were doing it manually. It took me 3 years to work 
through that.
    We have got a pretty good system now, but I am not sure how 
accurate it is across the country. So that is one of the first 
questions we have got, is how accurate is the system.
    The second one is what is public knowledge now. In other 
words, how public are arrest records? Can someone tell me, 
generally speaking? I am not talking about going to somebody, 
but if you go down to the--can you go down to the courthouse 
and get them? Can you go to the police department and get them?
    Mr. Hawley. Yes, sir. That is exactly the case. And what 
the record is showing is that clearly the employers are getting 
access to this data in some form or fashion.
    Mr. Lungren. You see, that is a fundamental question. If we 
have already made a decision, public policy decision, that this 
is public information, it is not the question of whether or not 
it is public, it is the question of whether it is accessible, 
not because of the law but because of the technology that has 
been applied.
    And so I think that is one of the fundamental questions we 
have to look at here.
    The third thing is I have always looked at it from the 
other side of it. When I was Attorney General, I was 
responsible for doing the background checks for teachers, for 
law enforcement and so forth.
    And we had to make that a priority versus everything else 
because of all the requests we were getting.
    And so we talk here as if it is just an instant thing that 
we are going to be able to do it, and I am not sure the FBI or 
the Justice Department is going to have the manpower, the money 
and so forth to do what we are setting out to do.
    And I think that is a concern, where we will be letting 
people have a false sense of confidence that that is available.
    The fourth thing is what kind of levels of access do we 
have. Security officers--I think that is fairly simple. We want 
you to have pretty good background checks. People who are 
teaching in school--we want to make sure you have pretty good 
background checks.
    We do background checks now for people who are going to be 
teachers--or, excuse me, going to be----
    Mr. Scott. Will the gentleman suspend?
    Mr. Lungren. Yes.
    Mr. Scott. We need to recess the Committee hearing. We have 
two bills we want to mark up very quickly, as we have nine 
people here.
    [Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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