Background Checks and Suitability Requirements

Background Checks:

Judicial Conference policy requires all persons working or volunteering in court chambers, such as law clerks, interns, externs, and volunteers, undergo a Federal Bureau of Investigation (FBI) fingerprint check as a condition of employment. The FBI fingerprint check searches criminal history records in the FBI national fingerprint database and provides a report indicating no arrest record or includes the arrest record. Also, judges may ask questions related to criminal history during the selection process.¹

Additionally, it’s within the discretion of the hiring court to also complete an FBI name check, credit check,²  and National Crime Information Center (NCIC) check. The FBI name check searches the FBI’s central records system to identify other names used and biographical data such as date and place of birth and social security number. The NCIC check searches the FBI index of arrests or warrants. These discretionary checks and searches are in addition to the required FBI fingerprint check.³

Please note that providing false and/or misleading information during the background check process may be grounds for removal from the selection process, as well as disciplinary action if discovered after an individual’s date of hire.

Suitability Determination:

Each appointing officer, with the approval of the chief judge, holds the responsibility of determining suitability for employment. The Judiciary promotes using the “whole person” concept when making suitability determinations. The “whole person” concept weighs all available information, past and present, favorable and unfavorable, about the reliability and trustworthiness of an individual. Criminal history is not in itself disqualifying.

Suitability Determination Review of Challenge:

Applicants, current employees, and interns may request copies of their FBI background checks or investigations and review and challenge the results of fingerprint or credit checks that result in negative suitability determinations.

Relevant Definitions:

• Appointing Officer: The official vested by statute to appoint, terminate, promote, demote, or reassign an employee.
• Cooperative Education and Fellowship Programs: College or law school-sponsored fellowships or cooperative educational programs in which qualifying students typically receive academic credit and a small stipend or transportation allowance while engaging in a practical work experience for public or nonprofit organizations. Cooperative Education and Fellowship Program students are uncompensated judiciary employees.
• Credit Check: A report obtained from a national credit bureau; an option that is available at the discretion of an appointing authority where such a check is warranted (based on consistently applied guidelines) by the duties of a position.
• Employment Suitability Determination: A decision made by an appointing authority as to whether an individual is suitable for employment based on the results of a background check or investigation and all other appropriate documentation and information provided.
• Extern: Term used by colleges or universities to describe students who participate in short-term programs (generally one day to two weeks) as "job shadowing" opportunities without pay or academic credit, to help students gain an insider's view of a career field. Externs are uncompensated judiciary employees.
• Fingerprint Check: A technical fingerprint search of the criminal history records in the FBI national fingerprint database; report indicates either "no arrest record," or an arrest record is attached.
• Intern (volunteer): Term used by colleges and universities to describe students in voluntary programs that provide longer term employment experiences (from several weeks to a year), that may involve academic credit, and support an organization's work function. Volunteer interns are uncompensated judiciary employees.
• Name Check: A search in the FBI central records system on the name and other biographical data provided (e.g., social security number, date and place of birth).
• National Crime Information Center (NCIC) Check: A name search of the FBI index of arrests or warrants.
• Volunteer: Individuals who volunteer their services in return for the educational experience of working within the judiciary, who may receive academic credit from their educational institutions for doing so, but do not receive monetary compensation or allowance from the judiciary. Volunteers may include externs, interns, or cooperative education and fellowship program participants.

1. The Fair Chance to Compete for Jobs Act of 2019 (FCA) more commonly known as the federal “ban the box” law became effective on December 20, 2021. The FCA prohibits federal employers, including the judicial branch, from requesting that applicants for most jobs disclose information on arrest and conviction history before a conditional job offer is extended. By statute, judges are not considered “covered employees” under the FCA and therefore are not prohibited from asking about criminal history prior to making a conditional offer of employment.

2. If warranted based on the duties or access, a credit check may also be requested by the hiring court. For example, an employee whose primary job responsibilities include financial duties may be required to consent to a credit check as part of the overall suitability determination.

3. NCIC checks are currently being conducted by some courts in lieu of FBI fingerprint checks due to the ongoing COVID-19 pandemic.