This recent PEW Research Article is a great read for any HR Professional or Business Owner looking to steer clear of issues with the FCRA, EEOC or ADA. In short, those convicted of crimes, those who were arrested, but never charged and those who have had their records expunged are objecting to the existence of websites such as Mugshots.com, which publish mugshots and arrest data online in an easily accessible and free environment. They claim that sites like these prevent those depicted from obtained jobs or career opportunities. Some states have created legislation to regulate these sites, attempting to make it illegal to request fees for removal of images and data. These laws, in some cases, do not require the sites to remove such images at all and therefore those affected are left with little recourse. Some individuals have even claimed that these sites have exerted extortion tactics during attempts to have such information removed, including the request for payment of “hundreds or thousands of dollars”. Mugshots.com contests that these records are public information and given that they are a private entity, are under no obligation to remove any data that they publish. The issue itself is complex and the number of images that these sites claim to have in their databases is staggering. Regardless of opinion, these records are public in nature and can be obtained elsewhere, if not from one of these sites. The last thing we want to do is suppress the availability of publicly available information. Yet, there should be some protections in place for those who can prove that they were ultimately cleared of any wrongdoing. As Background Check experts, specifically a company that specializes in creating compliant Consumer Reports that are meant to be used for hiring purposes, we see the solution in a different light. If more companies make the conscious decision to create strict hiring practices, prohibiting the use of websites like Mugshots.com, and create compliant protocols to obtain objective background investigations, sites Mugshots.com could become nothing more than a novelty to use to see what your friends from high school are up to.
A few things about this issue that most folks might not be aware of. When it comes to conducting a formal Background Check for employment, or in Mr. Anderson’s case, an internship; most states only allow conviction data (usually within a prescribed number of years) to be disclosed, so regardless of what someone was initially arrested for, or what a mugshot website may contain, an employer should only take into account what that applicant was actually convicted of as reported by a reputable Background Check Company.
Check out some of the legal Issues involved with conducting proper background checks for employment here:
BackgroundCheckCentral-Legal Issues
It is true that these convictions are a matter of public record, as are the originating arrest records and in most cases the mugshots, taken either at the time of the arrest or by the corrections facility that a person was committed to. Mugshots.com and other sites that collect, store, and disseminate these records are not government entities and are not Consumer Reporting Agencies; therefore they are being improperly utilized during the course of a Background Investigation for Employment purposes. Most employers, particularly those with smart hiring practices would agree that it is dangerous to conduct background searches and “Google Research” on an applicant due to the possibility of discrimination. You can’t “un-see” what someone looks like on social media or if you discover information as to their religion, sexual orientation, gender identification, ethnicity, political leanings or age; and those factors are what can lead to hiring bias and discrimination. The same can be said about unverified arrest data or mugshots that Google may produce when searching someone’s name.
It is best to incorporate an impartial Background Investigation into your hiring protocols to ensure unbiased employment practices that safeguard your company from discrimination issues and guarantee compliance with the FCRA and other applicable hiring laws.
It is worth noting that the same challenges facing individuals with records on Mugshots.com await anyone who has ever been arrested and either not charged, found not-guilty or had records expunged. Third party, non-government websites scour the web and purchase public record data that is not up to date and which does not contain the final dispositions of cases. These same websites contain misleading information that employers and unqualified background check companies may find and use to make hiring decisions. For more information on the issues facing applicants with expunged records, check out our blog from earlier this year at https://www.backgroundcheckcentral.com/criminal-record-expungement
A few final thoughts on the Mugshots.com website itself that we noted:
- The homepage contains two disclaimers in large text, one of which specifically states that Mugshots.com does not provide consumer reports (i.e., should not be used for employee screening and that they are not FCRA compliant)
- A giant national background check software company (Beenverified.com) advertises on the site.
- Like Mugshots.com, Beenverified does not define themselves as a consumer reporting agency under the FCRA and therefore should not be used for employee screening purposes. These are their own words. They tell you up front that they should not be used for employee screening purposes.
- Read their “permitted and prohibited” uses here: https://www.beenverified.com/about/dos-donts/
- com FAQ covers questions related to the deletion of mugshots should someone claim that their record was expunged or that they were not convicted.
- They simply state: “As you may be aware Expungement and pardon only apply to certain government agencies’ databases, and not all of them. Certainly not to the private sector.”
- They continue within a 2013 Blog Post by directing readers to their unpublishing link, which at the time of my writing this is not functioning.
- As far as we can see, there is no link, email, phone number or form to fill out to have records removed from their site or unpublished, nor is there any information about requiring payment to do so.
- In a September 2017 Article, David Kravets writes about a lawsuit involving an arrestee who was asked to pay $15k for removal of information that is worth a read as well.
If you are concerned that your hiring practices include records from a website that is not meant to be used for pre-employment screening or if you would like to speak with one of our investigations on how to ensure that you are compliant in your hiring practices, we implore you to give us a call or chat with us online.
Referenced article: http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/12/11/fight-against-mugshot-sites-brings-little-success