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34–928 PDF 2007

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 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

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 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 26, 2007 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable J. Randy Forbes, a Representative in Congress from the 

State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

WITNESSES 

Mr. Frank A.S. Campbell, Deputy Assistant Attorney General, Office of Legal 

Policy, United States Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Mr. Maurice Emsellem, National Employment Law Project, Oakland, CA 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

Ms. Sharon M. Dietrich, Managing Attorney, Employment and Public Benefits, Community Legal Services (CLS), Philadelphia, PA 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

Mr. Ronald P. Hawley, Executive Director, SEARCH, The National Consortium for Justice Information and Statistics, Sacramento, CA 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 54 

Mr. Floyd I. Clarke, Vice President for Corporate Compliance, Mac Andrews 

& Forbes Holdings, Inc., Philadelphia, PA 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

Mr. Robert F. Davis, International Vice President and National Legislative 

Director, Transportation Communications International Union, Rockville, 

MD 

Oral Testimony ..................................................................................................... 64 

Prepared Statement ............................................................................................. 66 

APPENDIX 

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

(1) 

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 informaVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
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tion 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. 

3 

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 

4 

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 noncriminal 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 FBImaintained 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 

5 

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 stateVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
6 

wide 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. 

7 

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. 

8 

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:] 

9 

PREPARED STATEMENT OF FRANK A.S. CAMPBELL


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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. 

16 

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. 

17 

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:] 

18 

PREPARED STATEMENT OF MAURICE EMSELLEM


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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. 

36 

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:] 

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PREPARED STATEMENT OF SHARON M. DIETRICH


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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. 

54 

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 

55 

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 

56 

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 comVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
57 

plete 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 twothirds 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 

58 

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 stateto-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 

59 

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, 

60 

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 FBImaintained records should be available to employers when States 

do not opt to participate. 

61 

1 United States Department of Justice, The Attorney General’s Report on Criminal History 

Background Checks (June 2006). 2P.L. 108–458, section 6402. 

3 References to ‘‘employees’’ in this statement should be understood to also include applicants. 

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

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. 

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. 

62 

4The 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). 

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

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. 

63 

5 Id at 22. 6 Id at 87. 7 Id at 94. 8 Id at 88. 9 Id at 27. 10 Id. 

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. 

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

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

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. 

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. 

64 

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 eRAILSAFE 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. 

65 

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. 

66 

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. 2We thank Chairman Conyers for his interest in this issue and his attendance at that hearing. 

[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 Transportation•Communications 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. 

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 explaVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
67 

nation 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. 

68 

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. 

69 

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 

70 

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 beVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
71 

cause 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 

72 

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 

73 

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 

74 

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. 

75 

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 cerVerDate Aug 31 2005 12:09 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042607\34928.000 HJUD1 PsN: 34928
76 

tainly 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. 

77 

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. 

78 

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. 

79 

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. 

80 

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.] 

81 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

f 


A.eps
82 


B-1.eps
83 


B-2.eps
84 


B-3.eps
85 


B-4.eps
86 


B-5.eps
87 


B-6.eps
88 


B-7.eps
89 


B-8.eps
90 

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B-9.eps
91 


C-1.eps
92 


C-2.eps
93 

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C-3.eps
94 


D-1.eps
95 

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D-2.eps
96 


E-1.eps
97 


E-2.eps
98 

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E-3.eps
99 


G-1.eps
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G-2.eps
101 


G-3.eps
102 


G-4.eps
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G-5.eps
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G-6.eps
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G-7.eps
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G-8.eps
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G-9.eps
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G-10.eps
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G-11.eps
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G-12.eps
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G-13.eps
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G-14.eps
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G-15.eps
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G-16.eps
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G-17.eps
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G-18.eps
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G-19.eps
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G-20.eps
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G-21.eps
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G-22.eps
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G-23.eps
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G-24.eps
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G-25.eps
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G-26.eps
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H-1.eps
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H-2.eps
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H-3.eps
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H-4.eps
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H-5.eps
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H-6.eps
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I.eps
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J-1.eps
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J-2.eps
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J-3.eps
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J-4.eps
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J-5.eps
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K-1.eps
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K-2.eps
139 

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K-3.eps
140 


L-1.eps
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L-2.eps
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L-3.eps
143 

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L-4.eps
144 


M-1.eps
145 


M-2.eps
146 


M-3.eps
147 

Æ 


M-4.eps