On June 6, 2005, the Department of Justice put a notice in the Federal Register asking for comments on a proposal to allow employers to access FBI databases for applicant screening and other job-related purposes. Although DoJ's effort is part of a wider, Congressionally-authorized program to standardize existing background checks required by statute, the prospect of employers using federal criminal databases as part of their business operation raises a vision of the corporate state that I hoped was some time away.
In truth, of course, employers use criminal databases for background checks all the time. These are typically done at a local level through state databases of arrest and conviction records. Some FBI arrest and conviction records are available through state agencies, but not to employers directly. Having some familiarity with criminal databases from my previous work as a prosecutor, I have real concerns about over-all accuracy and scope of the information available. Moreover, these records typically contain information that could taint any hiring decision, such as arrest records, which are not supposed to be considered in any way under federal or some state anti-discrimination laws. How much of this information should be disclosed, in what form it should be disclosed (it takes some familiarity or experience to evaluate FBI records), and how much privacy people give up when they apply for work are all issues that I hope get wrung out before this program moves forward.