"There is a curious paradox that no one can explain. Who understands the secret of the reaping of the grain? Who understands why Spring is born out of Winter's laboring pain, or why we all must die a bit before we grow again." - Tom Jones The Fantasticks

Background investigations and compliance seem to embody some "curious paradoxes."

Legal experts and industry presenters at the PBSA (Professional Background Screening Association) iterated one such paradox throughout the organization’s 2019 annual conference.

By consistently echoing the two opposing mantras "Avoid litigation, and Automate" and "Human intervention is key to avoid litigation." Well, which is it?

We as investigators, who are the curators of civil, criminal, and healthcare disciplinary records, and verifiers of education, employment, and references, face a difficult challenge in confronting these two seemingly contradictory mantras. 

Specifically, we question where is the point of inflection at which the expected results of either strategy may be rendered either positive or negative as we attempt to streamline our services through automation.

While at the same time diminishing human intervention in order to protect our organizations, our clients, and the populace they serve. 

Further, we ponder the larger societal implications, such as the fact that automation can lead to the unintended and detrimental consequences of false identification when records that may not belong to subjects appear in their background investigation reports.

Clearly, there must be a balance between automation and human intervention in the conduct of background investigations, and the paradox itself suggests that there is no universal approach. 

As such, one can only conclude that a balance must be struck with assessment on a non-universal case by case basis. 

In defining a “rule of thumb’ to that purpose, one might safely adopt a hybrid approach by (1) automating where possible to reduce costs; while (2) deploying designated investigator teams for the sole purpose of properly identifying and matching subjects with records; and (3) keeping a continual pulse on arising legislation that might block the release of these records.

Striking a sound balance between competing approaches offers a viable value solution to the automation vs. human intervention paradox problem.

The other paradox that we, as investigators, face pertains to legislation aimed at protecting identity and individual privacy, which can unintentionally cause more harm than good. 

This is what I call the “identity protection paradox.” No one, not one investigator out there, wants to improperly reveal subject data or pass on information that does not belong to a subject. We are in the business of protecting others. 

We want to protect our consumers, we want to protect our clients, and we want to protect all individuals connected to our business activity.  

To do so, we need the information and access required to accurately discern which records belong to a subject and which records do not. Legislation, which calls for masking of personal identifiers, gives consumers, and the public, the impression that their identities are protected. 

However, the unrecognized flip-side reality of such masking is that it increases the risk of "false positives" when attempting to properly identify to whom a record belongs. 

As such, individuals are at risk of becoming falsely associated with records to which they have no connection, including records that may have detrimental effects to their reputation and identity. So much for identity protection. 

This reality is exacerbated by the fact that Court Clerks have become more and more obstructive when it comes to providing as many identifiers as possible in order to facilitate accurate subject-to-record matches. 

This reticence on the part of Court Clerk’s is further testimony to how deeply the aforementioned consensus runs, that is, that we in the industry do not want to improperly reveal subject information.

The problem here is that our quest for Court Clerk clarification is not improper, for we act on behalf of subjects, and with their written consent as required by law.

"No one, not one investigator out there, wants to improperly reveal subject data or pass on information that does not belong to a subject. We are in the business of protecting others.”

This “identity protection paradox” presents a “low-information” dilemma that is especially challenging when a consumer dispute arises with a claim of an erroneous record match. 

With such a dispute, an investigator contacts the court for clarification whether a record in question belongs to a certain individual. The investigator provides identifying information and only needs a "yes" or "no" answer. 

For example: An investigator is presented with an individual who has a common name and a record of conviction. In order to accurately match the subject with the conviction record, the investigator offers the court the last four digits of the social security number seeking clarification. 

The court is not asked to release the social security number, all identifying information is possessed and provided by the investigator. 

In other words, even when the court is provided with the identifying information and all that is needed is a simple "yes, that matches," or "no, that's not a match," Court Clerks (increasingly) will not provide that simple yes, or no that is needed to address and repair the consumer’s dispute claim, and despite the subject's written consent.  

This “identity protection paradox” plagues investigators (and subjects) on a daily basis. So, what is an investigator to do? 

Do we pass what is possibly incorrect conviction information about a subject? 

Do we suppress the case, when the conviction could very well pertain to the subject, and risk a client's safety?

These curious paradoxes pose eternal questions for criminal researchers, which will be asked again and again as we navigate the ever-changing landscape of background investigations compliance.

What are the best practices to ensure that consumers are protected, and at the same time to avoid negligent hiring? And which approaches hold the greatest risks? 

In the absence of clear and consistent answers, we must do what we can to find as many identifiers as possible (any and all are the key), though this becomes trickier each day, and we must forge ahead and continue in our daily quest to protect.

Contact us to learn more.

Written by Michelle Pyan