On Friday, President Obama spoke in favor of changes to the Patriot Act that would protect Americans from spying. However, a lesser known outgrowth of post-9/11 policy is revealing an ugly connection between the criminal justice system and the employment security of women and people of color. Following the 9/11 attacks, many more U.S. workers are subject to FBI background checks. Federal laws like the Patriot Act, as well as 1,600 state laws enacted since 9/11, authorize or mandate background checks “for workers employed in occupations considered vulnerable to a terrorism security threat.” However, as many as half of FBI screenings include faulty or incomplete information about arrests or convictions—inaccuracies that can cause workers to lose their jobs or make it much harder for them to find work.
Against the backdrop of the broader economic challenge of finding and keeping a job, which is disproportionately felt by women and people of color, the need to ensure accuracy in background checks couldn’t be more clear. And while men are arrested at a much higher rate than women and thus more likely to be dealt the blow of faulty FBI reports, low-wage, women-dominated sectors like caregiving are becoming more common and professionalized. Employee rights advocates say this could increase the number of women of color whose employment prospects are limited due to faulty FBI reports.
Raquel Vanderpool is a 31-year-old Latina mother of two who provides caregiving and nurse aide services to the elderly. She was arrested for prescription fraud—changing the amount of painkillers she was to receive for a toothache—11 years ago. While she was able to keep her job despite the arrest, a new state law required her to get an FBI background check. Even though Vanderpool’s charges were dismissed and the record sealed, the FBI background check showed a conviction on her record.
The state law required her employer to fire her. Because of the inaccurate record, Vanderpool was unemployed for roughly four years—causing her to rely on food stamps and unemployment insurance.
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The National Employment Law Project (NELP) has advocated for workers like Vanderpool and notes that while some form of criminal background checks have been taking place for nearly a century, the frequency of FBI background checks has increased sixfold since 2002. “The background checks aren’t the problem per se,” Madeline Neighly, NELP staff attorney, told Rewire. “The problem is the accuracy of those checks, and what civil rights protections are in place for workers—particularly given how much more frequent background checks have become.”
A faulty background check can throw a severe wrench into the economic security of a worker like Vanderpool and her family. Vanderpool’s family lost their home in foreclosure as well as one of their vehicles as a result of her firing.
And workers who have faced repeated arrests can be subject to faulty background checks that list only the multiple arrests but exclude the fact that charges were dropped. Employers who review such background reports are less likely to hire a candidate with such a background report. NELP reports that as many as 600,000 workers annually may be prejudiced in their job search when information that is of benefit to the worker is not reported by the FBI.
“A lot of jobs requiring background checks are traditionally filled by women and people of color. And in communities of color, more people are likely to be arrested even for low level offenses,” Neighly said. “As we require more background checks for fields traditionally employed by women, more women could be impacted as well.”
An estimated 1.8 million workers a year are subject to FBI background checks that include faulty or incomplete information. Roughly 1 in 4 U.S. adults has an arrest or conviction record.
NELP’s work in bringing this issue to light is helping to mobilize legislation to address this issue. In the past week, two members of the U.S. House of Representatives introduced bills to ensure accuracy and fairness in employee background checks. On July 30, Rep. Robert “Bobby” Scott (D-VA) introduced the Fairness and Accuracy in Criminal Background Checks Act, which requires the FBI to ensure that records are accurate before they are sent to the employers and agencies that rely on them to make hiring and licensing decisions. And on August 2, Rep. Keith Ellison (D-MN) introduced similar legislation that applies to federal employees and employees of federal contractors.
Rep. Ellison’s proposal would go as far as requiring the FBI to remove any arrest records if it cannot find what the final outcome of the arrest was. It would also enable workers to challenge the accuracy of background checks.
While public outrage over the NSA leaks continues, the impact of faulty FBI background checks is a lesser known but potentially more harmful threat to American workers.