It’s well-known that private background checks frequently contain misinformation. At the East Bay Community Law Center in Berkeley, California, our Clean Slate Practice sees hundreds of clients each year who have a criminal record and are seeking employment. From a decade of experience, we know that private background checks produced by CRAs are riddled with an unacceptably high number of errors. For example, private background checks often associate a criminal offense with the wrong person based on the similarity of their names. Other common errors include reporting an old offense as having occurred recently, or mistaking the severity of an offense—such as reporting a misdemeanor as a felony, or failing to note that a conviction was dismissed. Often, private background checks even include information that they are legally prohibited from reporting, such as arrests that did not result in a conviction.

Replacing background checks with fingerprint-based background checks will not eliminate these same mistakes, and may not even substantially reduce their frequency. Criminal record information passes through many hands in law enforcement, including the court system as well as the DOJ and FBI themselves. Errors can be introduced at any stage of transmission before it ends up in state DOJ and FBI databases. Further, crucial information may not even be transmitted to the databases in the first place: According to a 2013 National Employment Law Project report, roughly 50 percent of the FBI’s criminal history records are incomplete and fail to include information on the final disposition of an arrest. On top of all that, false positives or mismatches based on similar names—which are often identified as the biggest problem with private background checks—can still occur in fingerprint-based background checks because arresting agencies do not always fingerprint everyone they bring in. Those criminal case records are still sent upstream to the DOJ and the FBI, and while statistics are hard to come by, we know from experience that they can, and sometimes do, become erroneously associated with the wrong person.

While background check accuracy is an important issue, there is a larger and more important question at play: Does it even make sense for employers to give criminal background checks such a central role in the hiring process? Even if private and fingerprint-based background checks are presumed to be 100 percent accurate, employers should still think hard about what conclusions to draw from an applicant’s criminal history. The reason is straightforward: Background checks are both over-inclusive and under-inclusive in flagging applicants as a hiring risk.

Consider that over-reliance on background checks inevitably screens out qualified, trustworthy job applicants. More than one in four adults in America has a criminal record, and the vast majority of them currently pose no threat to public safety and will not go on to commit crimes in the future: Most recidivism occurs within three years of an arrest, and beyond that point, recidivism rates begin to decrease so dramatically that a criminal record no longer indicates that a person is more likely to be arrested than someone without a record. At the same time, some individuals who commit violent crimes—such as the San Francisco Uber driver charged with attacking a passenger with a hammer—have no prior criminal record that would show up on a background check.