From the ESR Mail Box

Question:

Can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes that use a system to identity applicants with a criminal record?

Pledge:

The one thing that an employer can be advised with some certainty is that any sort of automatic policy based upon a person’s status as an ex-offender is very likely to expose a firm to a federal or disorder Equal Employment Opportunity Commission (EEOC) issue.  That is why nearly every employment application not only questions about past criminal records but also has a disclaimer that a criminal record will not be used automatically.  The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the scenery and gravity of the past offense, the relevance to the job and how much time has passed.  In fact, in 2009, New York passed a law that requires an employer to review a longer list of factors related to a past crimes.  This is why ESR advises clients to deal with any sot of automated software processes with extremes caution.

The thought is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to “pre-judge.”  Of course, that does not mean a sex offender should be supervising a playground or an embezzler usage money, but the bottom-line is that there is a job for all, although not all is entitle to every job.  As a society, we cannot afford to build extra prisons then schools or hospital, so there is a huge need to get past offenders employed. In fact, nationally, it expenditure about $30,000 a year to incarcerate a person.  If a person leaves jail or prison and cannot get a job, there is a high likelihood of recidivism and extra expenditure to society. 

On the other hand, they need to be employed in an apt job, to avoid harm to the firm or the public and to avoid lawsuits for negligent hiring.  There is no perfect solution, but as with many things associated with HR, it is the process that is critical.  The process should certainly allow for individual consideration of all applicant on their qualities as it relates to a job.  Of course, if a person has lied on level application and was dishonest about past criminal history then the employer may rightly be concerned about the lack of honesty on the application especially if the application clearly indicates hat any notes omission or misinformation is grounds to terminate the hiring process or employment, no matter when learned.

There are numerous ESR blogs on the subject that can help employers in navigating these issues:

• 2010 Trend on Increased Focus on Whether Credit Reports and Criminal Records are Discriminatory
• Discrimination Lawsuit Shows Importance of Employer Policy on the Use of Criminal Records During Background Checks
• The Unfair Use of Credit Reports and Criminal Records and the EEOC E-Race Initiative 

For extra in rank about background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.esrcheck.com/wordpress/2010/01/04/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory/

http://www.esrcheck.com/wordpress/2010/04/12/discrimination-lawsuit-shows-importance-of-employer-policy-on-the-use-of-criminal-records-during-background-checks/

 http://www.esrcheck.com/wordpress/2010/01/07/the-unfair-use-of-credit-reports-and-criminal-records-and-the-eeoc-e-race-initiative/

A recent news tale from Nebraska suggests that the next time you want a background check company to run a background check for you, you may want to run a background check on the background check company first to see if they run real background checks.

According to a report by KMTV Action News 3 in Omaha, NE, federal investigators arrested a Bellevue, NE man and accused him of running a background check scam. FBI agents believe the man – who had previously been indicted on wire and mail fraud charges – formed a background check company that allowable him to dupe consumers into believing he could run FBI and Interpol background checks on people, KMTV reported.

Investigators said the man charged $600 for all phony background check and scammed customers out of a total of $170,000, according to KMTV, which also reported authorities said private citizens are not capable of performing FBI or Interpol background checks.

Background check scams and other unauthorized background checks have become extra common with the rapidly spreading use of the Internet. In another tale posted on ESR News, an ex-school official in Massachusetts was fined for using his school’s computers to run several hundred unauthorized background checks on athletes, celebrities, and politicians for his own private purposes and in a manner that was not related to his job.

The tale from Nebraska also shows the danger of non-reputable background check firms promising “FBI-quality” background checks to consumers, in view of the fact that FBI background checks and FBI records are not generally available to the public but are only available for certain employers or certain industries where Congress or a disorder have granted access.

In addition, the actual quality of the in rank contained in FBI background checks has come into question. The New York Times recently printed a letter from the Federal Bureau of Investigation (FBI) that responded to an earlier Times editorial that discussed the accuracy of data the FBI relies on when performing criminal background checks.

A federal bill introduced in the House of government – Fairness and Accuracy in Employment Background Checks Act of 2010 (H.R.5300) – would strengthen the accuracy of employment background checks using data from the FBI criminal database.

To help determine if a background check firm is reputable,  visit the National Association of Professional Background Screeners (NAPBS) website at http://www.napbs.com.  An employer should consider only dealing with members of NAPBS in view of the fact that that shows a  commitment to professionalism.  Even then, an employer needs to conduct due diligence. See for example, http://www.esrcheck.com/ESRadvantage.php

For extra in rank about background check scams, unauthorized background checks, FBI criminal databases, and other related topics, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.kmtv.com/Global/tale.asp?S=12700466

The New York Disorder Office of Court Administration (OCA), which provides a New York Statewide Criminal History Record Search (CHRS), will bring to somebody's attention fees for all CHRS to $65.00 from $55.00 effective July 1, 2010, according to in rank on NYCourts.gov.

As clarified on NYCourts.gov, the OCA’s CHRS criteria “is strictly based on exact match of Name and DOB (variations of Name or DOB are not reported.) The search results are public records relating to open/pending and convictions of criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties. Sealed records are not told. Town & Village criminal disposition data is limited.”

The NYCourts.gov website also provides a Criminal History Record Search FAQ page that answers many questions about the OCA’s CHRS including the following:

• How many counties are included in the New York Statewide search? All of the Disorder’s 62 counties. Individual electronic county searches are not provided.
• What kind of in rank is included in the statewide search?
  The CHRS search process is based on locating an exact match of both the Name and DOB. The search results are public records relating to pending and disposed criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties. Sealed records are not told. As of July 20, 2007, data relating to non-criminal offenses (e.g., violations, infractions) will no longer appear as part of the CHRS report.
• Why does OCA not grant in rank on violations and infractions?
  As a result of a recent case filed in a New York court, the Unified Court System has reviewed its policy regarding the contents of criminal history summaries that it provides to individuals and businesses upon their request and for a fee. The review has resulted in a change of policy to the boundary that the summaries provided will report only convictions on charges that New York Disorder law regards as crimes. Crimes are defined by New York Disorder law as including misdemeanors and felonies only. Convictions on offenses

For extra in rank and FAQs about the OCA’s CHRS, visit http://www.nycourts.gov/apps/chrs/ and http://www.nycourts.gov/apps/chrs/faqs.shtml.

For extra in rank about employment screening and background checks, as well as the latest updates on changes in fees for criminal records searches, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.nycourts.gov/apps/chrs/

http://www.nycourts.gov/apps/chrs/faqs.shtml

The New York Times recently printed a letter from the Federal Bureau of Investigation (FBI) responding to an earlier Times editorial – ‘Check It Again’ – that discussed the accuracy of data the FBI relies on when performing criminal background checks. The text of the letter, titled ‘Reliability of F.B.I. Data,’ is as follows:

To the Editor:

The F.B.I. takes its role as a central repository for criminal justice in rank very sincerely, but must rely on the voluntary submissions of criminal history records supplied by local, disorder, tribal and federal law enforcement agencies, and the courts, for the overwhelming majority of its in rank.

While the F.B.I. appreciates this support, vital data regularly fails to get to the bureau in a suitable way because of the time lag in criminal prosecutions. To help find ways to capture this in rank extra efficiently, the F.B.I. formed an interagency task force to spot problem areas in states’ disposition reporting and methods to improve the system. The F.B.I. also oversees another task force to improve the flow of criminal history in rank from the courts to the disorder repositories and then to the F.B.I.

The F.B.I. is also working on internal improvements, including the Next Generation Identification program, an upgrade to the existing fingerprint identification system, which will improve disposition reporting, while a related initiative will enable efficient electronic updates.

Through advances in technology and the continued cooperation of our partners, the F.B.I. hopes to clear the way for additional improvements in the completeness of the background check in rank we grant.

Daniel D. Roberts
Assistant Director, Criminal Justice
In rank Air force Division, F.B.I.
Washington, June 2, 2010

The letter confirms that the FBI only gets what criminal background check in rank local jurisdictions and states will give it, and admits that “vital data regularly fails to get to the bureau in a suitable way” meaning the criminal database is not completely accurate.

The accuracy of the FBI database used for criminal background checks has become a hot topic for job applicants, employers, and even politicians. Recently, the Chairman of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security introduced a bill to strengthen the accuracy of FBI criminal background checks in response to a June 2006 report from the attorney general that showed nearly 50 percent of criminal records maintained in the FBI’s National Crime In rank Center (NCIC) database failed to note court decisions to dismiss arrests.

In view of the fact that employers rely on the database to conduct background checks on potential hires, the ‘2010 Fairness and Accuracy in Employment Background Checks Act’ (H.R. 5300) would strengthen the accuracy of the FBI’s criminal database by requiring the U.S. Attorney General’s Office to verify that crime data used for background checks is up to date, find out the outcome of arrests whenever an employer requirements a background check, and update that record in the NCIC database. 

For extra in rank about background checks, and how some FBI background checks may use inaccurate or incomplete in rank, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.nytimes.com/2010/06/08/opinion/l08fbi.html 

http://www.nextgov.com/nextgov/ng_20100518_2029.php 

http://www.opencongress.org/bill/111-h5300/text

http://www.nytimes.com/2010/05/27/opinion/27thu3.html

http://www.justice.gov/olp/ag_bgchecks_report.pdf

In a tale that shows the importance of using overlapping tools to do criminal background checks,  a jury recently ruled that negligence by the Housing Power in a North Carolina city led to an elderly woman’s fatality at the hands of her crack cocaine addicted neighbor in 2007.

A tale on CharlotteObserver.com revealed that attorneys sued the agency on behalf of the 63-year-ancient woman’s estate after she was strangled in her apartment at a public housing complex for the elderly and disabled. Her 46-year-ancient neighbor – who reportedly had a history of violence, drugs, and mental illness – was later convicted of her killing.

Jurors awarded victim’s sons $132,000 over their claim of inadequate tenant screening after a background on the convicted killer missed several convictions for violent behavior in the man’s past. Jurors said they could not agree on a monetary amount, and the final figure was a compromise that was far less than the $10.4 million in hurts the sons were asking for.

At issue in the trial was whether the Housing Power properly screened the woman’s killer with a background check before it let him live in the apartment complex. The CharlotteObserver.com reported that the attorney for the woman’s estate argued that the Housing Power violated its own procedures by doing only a North Carolina background check – not nationwide background check – on the woman’s eventual killer. The N.C. check missed violent crime and drug convictions in Maryland that would have prevented the man from living at the apartment complex.

The jury agreed, and CharlotteObserver.com quoted the foreman as saying that the just felt like the elderly woman’s murder could have been prevented with better background checks. The attorney also said he hoped the discrimination would make the Housing Power do extra comprehensive background checks on tenants.

A tragic tale such as this reminds employers – and landlords – of the importance of national multi-jurisdictional searches that can uncover criminal records that job applicants – or tenants – have in states other than the one in which they currently live and work.

Employment Screening Resources (ESR), a national pre-employment screening provider, offers a National Multi-Jurisdictional Criminal Database Search, which are comprehensive multi-jurisdictional and statewide searches that cover a much larger geographical vicinity than traditional county-level searches. Such a search can grant potential leads as to other places to search.

But, ESR believes that in view of the fact that these databases have both pros and cons, it is critical to know that:

• Multi-jurisdictional database are NOT official FBI database searches.  FBI records are only available to certain employers or industries where Congress or a disorder has granted access.
• Multi-jurisdictional and statewide databases searches are a research tool only and are not a substitute for a hands-on search at the county level under any circumstances.
• Not all states have databases that are available to employers.  In some instances, the databases that are available have limited in rank.  Therefore the value of these searches in these states may be very limited.   
• Some states that make official disorder police records or records directly form the court available.  But, the in rank may not be reportable under disorder or federal la for various reasons. 
• Databases in all disorder are compiled from a number of sources and the in rank may not be accurate or perfect.  Because of the scenery of databases, the appearance of a person’s name on a database is not an indication the person is criminal any extra than the absence of a name shows he/she is not a criminal. Any positive match MUST be verified by reviewing the actual court records.  Any lack of a match is not the same as a person being “cleared.”

Extra in rank on the pros and cons of multi-jurisdictional and statewide databases – including what in rank this search is based on, how criminal record “hits” should be reconfirmed to ensure accuracy, and how Sex Offender databases are derived from the disorder-maintained registry, is available on ESRCheck.com at:

• http://www.esrcheck.com/multijurisdictionalsearch.php
• http://www.esrcheck.com/database_issues.php

Source: http://www.charlotteobserver.com/2010/02/10/1236243/jury-finds-housing-power-negligent.html

A recently filed class action lawsuit – which alleges that one of the largest management consulting firms in the world conducted background checks that discriminated against African-Americans and Latinos – underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process.

According to a tale on CNNMoney.com, the lawsuit accuses the firm of violating Title VII of the Civil Civil rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even when the criminal history has no bearing on the individual’s fitness or ability to perform the job in question. CNNMoney.com reports that the lawsuit alleges the plaintiff had worked as a contract employee for extra than a year when, in April 2007, the firm offered him stable employment. This job offer was then withdrawn – and the plaintiff’s employment as a contract worker terminated – after the results of a background check revealed that he had been convicted of vehicular homicide after driving while intoxicated a decade earlier.

The worker filed a Charge of Discrimination with the EEOC in November 2007 and the EEOC issued a “right to sue” letter to him on January 2010. The lawsuit, according to CNNMoney.com, seeks to force changes in the management consulting firm’s hiring and retention policies, practices, and programs, restore the worker and others like him to their positions at the company, front and/or back pay and benefits, and litigation expenditure.

Leading national online background check firm Employment Screening Resources (ESR) targeted the use of criminal reports in its recently released third annual “Top Ten Trends in the Pre-Employment Background Screening Industry for 2010” that identifies new trends making a difference – such as attorneys, including class action lawyers, focusing extra on background checks – and ancient trends evolving as the screening industry matures.

The first of the “Top 10 Trends” ESR will track closely in 2010 concerns the increased focus on whether both credit reports and criminal records promote discrimination. In October 2009, the EEOC filed a lawsuit against a national employer alleging that credit reports and criminal records were being used to discriminate against members of protected groups.

These recent actions should not come as much of a surprise to the background check industry, according to ESR, as there has been a steady drumbeat of concern about both credit reports and criminal records.  While the use of credit reports during background checks has been in the headlines recently due to the hurt the economic downturn has done to the credit rating and finances of many job applicants, the use of criminal records during background checks is also coming under closer scrutiny. In 2009, New York passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on their qualities. 

ESR believe this lawsuit clearly shows why employers should be familiar with discrimination and the critical “No Automatic Exclusion Rule”  when it comes to the use of criminal records during background checks. This rule states that employers cannot deny employment automatically but need a business justification not to hire based upon criminal records. 

The EEOC has made it clear the automatic use of a criminal record without showing a “business necessity” can have discriminatory impact by disqualifying a disproportionate number of members of underground groups.  The EEOC’s position when it comes to the use of criminal records: “an employer’s policy or practice of excluding from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Therefore, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII (the Equal Employment Opportunity law) in the absence of a justifying business necessity.”

According to the EEOC, employers must show that it considered these three factors to determine whether its choice was justified by business necessity:

• The scenery and gravity of the offense or offenses;
• The time that has passed in view of the fact that the conviction and/or completion of the sentence, and;
• The scenery of the job held or sought.

In other words, employers cannot simply follow a “No one with a criminal record need apply” approach that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a rational, job-related reason why that person is unfit for that job.  Employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.

One vicinity ESR reckon employers need to review their practices is with regards to using automated “pass/fail” scoring matrixes where job candidates are given a green (pass) light or red (fail) light.  That sort of automation where individuals are judged entirety by their membership in a particular category instead of their private abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice.  This practice presents dangers to employers – both large and small – and they should not be engaging in automated choice making based on background checks. The final say should be left in the hands of creature beings.

As a general rule, ESR believes it is a best practice for employers to have written policies on vital issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

Sources:

http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php                                                                        

http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records

http://money.cnn.com/news/newsfeeds/articles/prnewswire/DA83387.htm

A recent article in the Denver Business Journal reveals fine points about a modest-known bill that may have a huge impact on the business community in Colorado with regards to employer liability from negligent hiring.

House Bill 10-1023 “Employer Liability Negligent Hiring” – recently signed into law by Colorado Governor Bill Ritter – prohibits the criminal history of an employee from being part of a lawsuit against the employee’s business unless that criminal history has preside over applicability to the legal action.

According to the article, the bill was sponsored by Rep. Mark Waller (R-Colorado Springs) after he learned that businesses regularly do not hire applicants with criminal backgrounds no matter how long the ex-convicts have been clean or how unrelated their criminal histories are to the jobs for which they applied.

In view of the fact that employers dread being sued for negligent hiring if staff they hire with criminal backgrounds do anything incorrect, Waller wanted to help protect businesses from negligent hiring lawsuits while also giving ex-convicts a chance to find work. The resulting bill prohibits in rank concerning the criminal history of an employee from being introduced in civil actions if:

• The employee’s record is sealed;
• The employee received a pardon;
• The criminal history isn’t related to the proof of the case, or;
• The employee’s record is from an arrest or charge that did not result in a criminal conviction.

But, businesses still would be held accountable for negligent hiring if they hired employees with criminal backgrounds unsuitable for their jobs, the example given the article being a person convicted of contravention and entering hired to install alarms in homes who then subsequently robs one or extra of those homes. As usual, employers must use common sense in these matters.

With new laws like the one recently passed in Colorado, employers will want as much in rank as possible upon which to base their hiring decisions. Criminal background checks are a safe and effective way to reveal the criminal pasts of applicants and to help employers make future choices about which staff they want to hire.

For extra in rank on criminal background checks, other methods of a safe hiring program, and the latest legal updates regarding negligent hiring, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.bizjournals.com/denver/blog/capitol_business/2010/03/new_law_gives_ex-cons_a_better_chance_at_a_job.html

http://www.leg.disorder.co.us/CLICS/CLICS2010A/csl.nsf/fsbillcont3/33D8A2927B432FBA872576A80026AFC2?Open&file=1023_01.pdf

A series of recent surveys from the Society for Creature Resource Management (SHRM) reveals that when it comes to reference background checks and criminal background checks, approximately three out of four U.S. businesses perform these two types of background checks as part of their pre-employment screening programs. 

According to surveys conducted in November and December of 2009 and comprised from a sample of over 400 randomly selected Creature Resources professionals from SHRM’s membership, 76 percent of organizations conducted reference background checks for all job candidates, while 73 percent of organizations conducted criminal background checks for all job candidates by reviewing consumer reports of candidates. 

Surprisingly, despite recent controversy surrounding the use of credit background checks in pre-employment screening, the survey found that only 13 percent of organizations performed credit background checks on all candidates, while 40 percent did not conduct any credit background checks and 47% performed them on selected job candidates. 

As for which job categories that organizations chose to conduct background checks on, the survey revealed candidates for positions with “fiduciary and fiscal responsibility (usage cash, banking, and accounting)” led in both credit background checks (91 percent) and criminal background checks (78 percent), while 76% of job candidates who would have access to “confidential employee in rank” had reference background checks conducted that included verifying in rank provided by the job applicant or communicating with people regarding the job applicant such as former co-staff. 

In general, organizations responding to the surveys from SHRM indicated that the following policies and procedures were in place for conducting reference, credit, and/or criminal background checks on job candidates as of 2009: 

• 95% had told candidates that any fake or intentionally misleading in rank provided in the application process was grounds for retracting job offers;
• 91% had policies that no criminal background checks were conducted without signed consent from the candidates;
• 89% had policies that only designated personnel would have access to reference, credit, and/or criminal background check in rank;
• 79% had written policies for employees to follow regarding conducting reference background checks; and
•  78% had standardized questions for the person conducting the reference background check on behalf of the establishment, and written policies for employees to follow regarding conducting criminal background checks. 

When questioned if the number of reference, credit, and/or criminal background checks that their organizations conducted on job applicants increased, decreased, or remained the same as a result of the economic downturn, approximately three out of four respondents answered that the number had remained the same for reference background checks (74 percent), criminal background checks (73 percent), and credit background checks (71 percent). 

For extra in rank on how employers can conduct an effective background check program, contact Employment Screening Resources (ESR). 

Sources:

http://www.shrm.org/Research/SurveyFindings/Articles/Pages/ConductingReferenceBackgroundChecks.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckingGeneral.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundChecking.aspx

Many courts throughout the US are closed or delayed due to holidays, budget cuts and weather.  In California , there are going to be three court closures in a row as flollows:  

Friday Feb 12^th – Lincolns Birthday
Monday Feb 15 – Washington’s Birthday
Wednesday Feb 17^th – Court Furlough

This will delay the completion of background reports for all employers that are requesting backgrond checks that include a California compnent.

For ESR clients, notices concerning delays and closures can be found at the ESR Client Center at http://www.esrcheck.com/client_login.php

Employment Screening Resources (ESR)  is committed to providing its clients with the most accurate and up-to-date in rank, which typically means ESR criminal in rank comes directly from  the courthouse.  There are some courts that make their data available to ESR  online, and ESR only uses such sources if it is the functional equivalent of going to the courthouse (in other words, it would  be the exact same in rank as if ESR went physically to the courthouse).