Just in time for the holidays, Maryland residents may be left without Uber and Lyft. By December 22, state regulators will decide if all for-hire drivers must have fingerprint background checks to work. If fingerprinting is mandated, the companies could cease operations in the state — just as they did in Austin, Texas earlier this year.
This is a classic case of policymakers putting tens of thousands of jobs at risk because they watch too much CSI on television. Fingerprint background checks sound secure, but they are unnecessary, ineffective, and discriminatory when misused as a job screening tool.
In 2015, the Maryland General Assembly instructed the states’ Public Service Commission to evaluate the effectiveness of the name-based background checks that ridesharing companies voluntarily use. Over a three-day hearing last month, Uber and Lyft laid out the reasons why their checks are just as effective as government fingerprinting. If the commission accepts these arguments, the law’s fingerprinting requirement will be waived.
If not, Maryland will become the only state that requires fingerprint background checks for ridesharing and tens of thousands of drivers will lose their jobs. Ridesharing is a popular work opportunity because drivers are independent contractors and can work when they want with relatively low startup costs. On the local level, besides Austin, New York City and Houston mandate fingerprinting for drivers. While both companies operate in New York City and have no plans to leave, Lyft left Houston in early 2015 and Uber may soon cease its operations there.
Ridesharing companies are adamant in their opposition to mandated fingerprint background checks because they want to know applicants’ comprehensive criminal and driving records. Criminal background checks are only as accurate as the sources that they pull information from, and these sources are often flawed for fingerprint checks.
Though fingerprinting sounds foolproof, these types of checks often fail at registering offenses that name-based ones would flag. Name-based background checks query thousands of courthouse and law enforcement databases to find relevant records. Fingerprint checks only pull information that is connected to fingerprints.
For example, the database that Maryland uses for fingerprint background checks excludes certain traffic violations, including DUIs and reckless driving incidents — both of which name-based background checks would catch. Ridesharing companies clearly need to know about these types of infractions to keep riders safe.
While missing major red flags is a problem with fingerprint background checks, an even more troubling consequence of forcing this system is that otherwise qualified and safe drivers will be denied work opportunities because law enforcement agencies do a poor job of keeping their records up to date. If someone is arrested, but then found not guilty or never charged with a crime, that information would need to be updated for fingerprint background checks to be effective. Yet this follow-up step is often overlooked, which leads to discriminatory results.
Since 2010, the Department of Justice revealed that more than 11,000 people were arrested in Baltimore but not charged by the State’s Attorney’s Office. This happens nationwide, as a 2013 National Employment Law Project study found that around a third of felony arrests never lead to any conviction. These are the types of cases that lead to problems with fingerprint background checks.
And these problems are substantial. A fingerprint search of the database Maryland would force Uber and Lyft to use can be expected to retrieve an accurate and complete criminal history for an applicant only about half of the time, according to testimony from SUNY Albany professor Shawn Bushway. This level of accuracy is inexcusable. There is no reason to mandate a background check system that is as accurate as a coin flip.
In a letter to the Public Service Commission, chair of the Legislative Black Caucus of Maryland Cheryl Glenn echoed the National Black Caucus of State Legislators and wrote, “Not using fingerprinting actually enables more individuals to qualify as drivers because they are not being kicked out due to faulty fingerprinting, fingerprinting that may have been taken during as arrest that was wrongful or expunged.”
Fixing these errors is difficult. University of Maryland professor Michael Pinard testified that it would be “difficult if not impossible” for people without law degrees to challenge the faulty results from a fingerprint background check.
Continuing on this theme, Uber argued in its closing brief that, “Marylanders should not be forced to navigate a complex judicial maze to earn extra money to support themselves or their families. This problem is particularly acute for African-Americans who are more likely to be arrested and yet never convicted of any crime. No community deserves to be treated unfairly because of flaws in the system.”
About 30,000 people drive with Uber in Maryland full time or part time, and few of the drivers have gone through fingerprint background checks. Ridesharing offers flexible earning opportunities for people of all income levels to meet rent, earn extra spending money, or even lift themselves out of government dependence. If the commission decides against the ridesharing companies, these drivers will be immediately out of work later this week.
By forcing fingerprint background checks, the burden of starting driving will shift from Uber and Lyft to their drivers. Both companies currently cover the costs of their background checks, but they cannot take on the burden of going to a government office to get fingerprinted. Fingerprinting would increase ridesharing’s onboarding process from a few days to potentially a few weeks.
One of the main benefits of the ridesharing model is that there are low start-up costs. Every added cost or delay, whether fingerprint background checks or union initiation fees, makes it less likely that people will begin partnering with ridesharing companies.
No background check system is completely accurate, but ridesharing’s safety record shows that the companies’ current name-based checks work. Furthermore, instead of increasing public safety, Maryland policymakers are placing their constituents at greater risk by mandating fingerprint background checks. Perhaps nowhere is this unintended consequence clearer than with drunk driving. Uber has been documented to lower both drunk driving arrests and fatal accidents, partly because taxis are difficult to find late at night. New Year’s Eve will be a lot more dangerous if Uber and Lyft are not available to bring intoxicated partiers home.
In addition to public safety concerns, an argument for fingerprinting is that Maryland’s licensed taxi and limousine drivers are required to go through the process. Fingerprint requirement are nothing more than a way to “level the playing field,” according to proponents. However, there are two ways to level a regulatory playing field. One involves placing additional hurdles on new business models while the other focuses on lowering existing barriers. To help taxis better compete against their ridesharing competitors, policymakers should focus on cutting unnecessary requirements so that taxis can become more like Ubers — not the other way around.
Fingerprint background checks, which were designed for law enforcement agencies, were never meant to be used as a job screening tool. When required, they are ineffective and discriminatory. Instead of applying fingerprint requirements to ridesharing drivers, Maryland policymakers should review other occupations that inexplicably require fingerprinting and additional government-imposed barriers to work. For now, Maryland residents can only hope that these ridesharing services are still around for the new year.
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