[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
______
U.S. GOVERNMENT PRINTING OFFICE
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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
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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\
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\1\ United States Department of Justice, The Attorney General's
Report on Criminal History Background Checks (June 2006).
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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.
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\2\ P.L. 108-458, section 6402.
\3\ References to ``employees'' in this statement should be
understood to also include applicants.
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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\
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\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).
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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.
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\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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Material Submitted for the Hearing Record