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Ensuring workplace safety is the primary reason 96% of employers conduct background checks, according to a survey conducted by HR.com, but more than half of employers also conduct screenings to improve the quality of their hires. One of the biggest challenges for employers is the lack of access to date of birth (DOB) records for state and federal databases. Background checks are useless if they’re not accurate, and they can also get companies in hot water when it comes to compliance with state and federal laws that govern this information.
Matching individuals to available records requires more than just the applicant’s full name. Identifiers such as their DOB is crucial to obtaining the correct information as well as decreasing the time it takes to complete the report.
What is PACER?
Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts, and the PACER Case Locator. PACER is provided by the Federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service. In operation for more than 30 years, PACER provides access to virtually all documents filed since 1999 by a judge or parties in all U.S. courts of appeals, district courts and bankruptcy courts.
How PACER Impacts Employer Background Checks
In 2019, legislation was introduced in both the House of Representatives and the Senate that requires free public access to federal court records through PACER system and instructs the federal judiciary to institute one uniform electronic filing system for all federal courts.
In summary, the PACER bill would require the Administrative Office of the U.S. Courts to:
- Consolidate all of the federal court filings and record systems into a single system;
- Make all federal court filings publicly available online at no charge (with exceptions for redactions and filings under seal);
- Make all federal court filings available in machine-readable, searchable, linkable form;
- Offer states the opportunity to participate in the system at a fee set to recover the cost of the services provided to each state.
These are things that employers and background screening companies want to ensure a faster process allowing for background checks to serve HR and businesses with safe workplaces and businesses for employees and customers alike. However, within the background screening industry, it still falls short by excluding identifiers like DOB.
The Executive Director of the Professional Background Screening Association (PBSA) stated in an opinion piece that the “accuracy and timeliness of any background check is dependent on access to personal identifiers like complete date of birth” in public records such as those on PACER. In her article “Identifiers in Public Records Help Put Americans to Work Faster” published on the Morning Consult website in September of 2019, Melissa Sorenson wrote that although people may assume DOBs “would be available to background screening companies, especially since the subject of the check already provided them with this information… DOBs are unavailable in the federal record keeping system known as PACER, and an increasing number of state and local courts are also redacting this information.”
Sorenson explained how the lack of access to DOBs and other identifiers in public records stored in PACER used for background checks “makes it extraordinarily difficult for professional background screeners or consumer reporting agencies (CRAs) to conclusively determine whether or not a criminal record belongs to a particular individual, especially when the individual has a somewhat common name.”
With many people having the same or very similar names in the United States, Sorenson explained how – without identifiers like DOBs in PACER – “false negatives can arise where a CRA does not report criminal record information because they cannot positively link the record to the consumer when the only identifier available is the name, potentially compromising the safety and security of others.”
Sorenson wrote: While PACER was originally intended for internal court use that would not require DOB, the reality is that it is a vital source for CRAs conducting criminal record checks and including identifiers is immensely important. At the state and local level, redacting these identifiers is often justified by citing privacy concerns, but there are tremendous, unintended consequences.
How FCRA and PACER Work Together
One of the reasons that employers often choose to use third-party vendors for conducting background checks is because these providers are trained to properly handle personally identifiable information (PII) and are subject to strict regulations under the Fair Credit Reporting Act (FCRA) and the Fair and Accurate Credit Transactions Act of 2003. They are also regulated extensively by state and local rules pertaining to data security and privacy laws.
PBSA supports a federal approach to data privacy and security legislation that would establish a clear regulatory approach to protecting consumer data. Because background checks may be unable to report federal criminal records unless other information can be located that conclusively matches the record to the candidate; this can cause potential delays in the hiring process. PBSA and its members have asked that Congress enact legislation that requires that PACER records are completed with additional identifiers, such as DOB, to help facilitate matching and reporting accuracy.