Resource Center

Federal versus State Criminal Records

Question: Should employers conduct criminal record searches at both the state and federal level?

Response & Analysis:

Yes. It is a best practice for employers to search both state and federal criminal records because some crimes may only be prosecuted on a federal level and thus only appear when federal courts are searched (and vice versa). Thus, to receive a comprehensive report on an applicant’s entire criminal record, both state and federal records should be searched.

Most criminal prosecutions occur on the state level and are for alleged violations of various state laws. Typically, state crimes are investigated by county sheriffs, state agents or local police officers, and are prosecuted by state district attorneys or city attorneys at county courthouses in that state. Records of these criminal offenses will show up when county or statewide searches are conducted. However, in addition to prosecutions under state law, there are also federal criminal laws that are passed by Congress, prosecuted by the United States Attorney’s Office and investigated by federal officers, such as FBI or DEA agents. These laws typically relate to some federal or national interest, such as interstate trafficking in contraband, federal tax fraud, mail fraud or crimes committed on federal property. Federal prosecutors are increasing the number of actions they bring in federal courts, and are focusing on higher profile and emerging crimes, such as child pornography, hacking and other cybercrimes.

There may be some criminal records that do not appear on a state search and that are also missed by an OIG excluded parties search, such as Medicare fraud. Individuals convicted of these crimes may never be excluded or the OIG may not even know about such records, and thus it is important for healthcare providers to conduct a thorough criminal records search on both the state and federal level. Organizations that are under a corporate integrity agreement may be required to search for and not hire people who are or would be excluded.

If a crime is prosecuted at the state or county level, records of the crime will likely only be found through a county courthouse or statewide repository criminal records search. If an employer chooses to only conduct a federal criminal search, then records of any crimes prosecuted on the state level will be missed. Likewise, there are many serious crimes that are prosecuted on a federal level, and records of such crimes would be missed if an employer’s criminal record search is limited to only the county or state level. Employers may choose to supplement county or state-level searches with a criminal database search, such as through the National Criminal Database (NCD), however, these database searches will only include state records and generally do not cover federal criminal records. Thus, employers should strongly consider searching criminal records on both the state and federal level to ensure that they are reviewing an applicant’s complete criminal history.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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