In the investigative business, rush requests are common for a variety of reasons. Such requests often come in waves, as we’ve recently seen with background checks. At the moment, some current issues are creating new hurdles, particularly within certain court jurisdictions.
Many people believe that background checks are instant, and they can be—if you want unvetted, incomplete, and potentially erroneous information. A proper background check, however, takes time, especially legally compliant ones.
Another common belief is that paying a premium, or rush fee, will guarantee a quick turnaround. Rush requests will certainly cost more, but the additional fees will not solve all problems, as will be explained shortly.
Background Checks: A Tale of Two Investigations
For this article, a background check consists of two parts: the “desktop” research that we handle at our office and the work that takes place at courthouses and clerks’ offices across the country. And while we may sometimes think we’re in the center of the world in Midtown Manhattan, we can’t take a subway to Briscoe County, Texas, for example. In most cases, we must send in professional researchers to complete that work. When it comes to background checks, as we’ve addressed in previous blogs [link], some things are within our control and some things are not. The office work is generally in our control; the remote work is a mixed bag.
We pride ourselves on customer service and do whatever we can to accommodate clients’ requests. Rush requests are largely a matter of logistics; resources are finite. When we receive a request to expedite a background check, we sometimes shuffle things around to prioritize that client’s request. It’s usually not an issue and we can complete the office work in an expedited fashion without sacrificing work quality or affecting other clients—we wouldn’t accept the assignment if it did—but, as stated earlier, the office work is only one part of the equation.
The local court and clerk’s office research is often the biggest hurdle. While some of this research can be done online, much of it cannot, particularly with FCRA-governed background checks, such as employment checks and tenant screening. To get the most complete, accurate and current information, as required by the FCRA, the research must be done at the courthouse. Generally, this part of the check can also be broken down into two categories: mercy of court jurisdictions and non-mercy of court jurisdictions. To quickly recap, a mercy of court jurisdiction is one where we cannot complete all, or part, of the research ourselves. A court clerk must perform the research, and various factors may adversely affect a court’s ability to fulfill requests in a timely manner, such as:
- Staffing shortages (almost everyone was affected by the “great resignation”)
- Computer issues (one county comes to mind that was hacked and, before I even finished writing this blog post, we received a notice that an Arkansas court’s system is down with no estimate of when it will be back up)
- Limited hours and/or number of requests allowed (budgets, COVID, etc.)
- Antiquated protocols (some clerks mandate the use of snail mail to receive requests and send results)
- Natural disasters (a courthouse recently burned down after a lightning strike)
These are only a few of the many factors that cause backlogs of requests and, therefore, delays. If this reality weren’t bad enough, the issues referenced at the beginning of this post create additional challenges. Consider the following two examples.
Dates of Birth Redaction (California)
Many courts in California have removed dates of birth and other personally identifiable information from the public court index. The goal was supposedly to protect privacy, but it now forces researchers to request that information directly from court clerks. As you can imagine, this change has caused significant delays as clerks now have to deal with an excessive number of requests. Some California courts have responded by limiting the number of queries they handle at one time, requiring appointments, or imposing other onerous conditions, including refusing research requests. These measures just add fuel to the fire. The result? Delays that can add up to weeks or even months.
Automatic Conviction Expungement (Michigan)
The Michigan Clean Slate Act sets aside, or expunges, certain criminal convictions automatically based on time and type of offense. As courts scramble to comply with the new law, some courts are taking longer to respond to requests and/or limiting the record information that they return. The state has recently approved increased funding to add court staffing, which has helped, but some courts still are experiencing delays.
The Professional Background Screening Association (PBSA) has useful information about both issues.
Of course, California and Michigan are not the only states with mercy-of-court issues. Murphy’s law dictates that we’re bound to encounter such situations with time-sensitive requests. How can you give yourself the best chance of getting the information you need? While some expedited requests cannot be helped, it’s best to make your request as early as possible and understand that some delays may be difficult, if not impossible, to overcome. Your background check provider should also be able to advise you of an inevitable delay so you can manage internal expectations. Finally, depending on the type of check (non-FCRA) involved, some creative, legally compliant solutions may be available.
