Wednesday, December 11, 2013
The holiday season is upon us. Many employers are planning office parties or allowing employees to plan parties. You’ve heard the stories of bars being liable for their patrons after they leave the establishment or parents who have allowed parties to take place at their homes. These same liabilities are being applied to employers who serve alcohol at office parties.
A California Appellate court ruled in August of 2013 that the employer was liable when an employee caused a fatal accident after becoming intoxicated at the employer sponsored party. The ruling was based on vicarious liability and the employer’s responsibility for their employee’s actions. Not all courts may rule the same in all situations, but the precedent has been set. Why take the chance with your livelihood.
The possibility of legal action should not dampen the festivities or cause employers to cancel parties. Employers have to be aware of the issues and plan accordingly. A little preparation and foresight now may save a lot of money and heartache later.
If you are having a party, consider the need to serve alcohol. If alcohol is served manage the consumption and arrange for rides for those who do consume. Every effort you make will help later if you were to be sued.
Wednesday, October 23, 2013
As Halloween approaches and we send our kids roaming through the neighborhoods to gather their yearly haul of treats safety should always be on parent’s minds. Visibility, safe costumes, etc. are always checked off. But do we pay attention to the neighborhoods in which our children trick or treat? And from whom the treats are obtained? Hopefully, parents escort younger children. Older children that go unescorted can also find themselves in dangerous situations.
In recent years, communities have required that registered sex offenders identify their homes with either a “sex offender” or “no candy” sign”. MD Dept of Parole and Probation, who manages the Sex Offender Registry, has had this policy since 2005.
In 2012, Sex offenders in Simi Valley, CA successfully challenged a city ordinance in Federal Court citing a violation of their First and Fourteenth Amendment rights. Lawyers for the group California Reform Sex Offender Laws, CA RSOL, filed a lawsuit in Federal court during September 2013. The suit alleges that the city of Orange is violating sex offenders First Amendment rights by requiring the posting of signs on Halloween night. Lawyers feel that the ordinance places sex offenders at risk. They also cite that there has not been a documented incident of a sex offender harming a child on Halloween night.
Should sex offenders be allowed to pass out candy on Halloween? Communities are saying no. One court has said yes. Expect the California rulings to pick up steam each year as more suits are filed.
Parents should know the neighborhoods and for the most part the homes the children are visiting. There are also many online resources to assist parents in their research.
Friday, October 11, 2013
A client from Gambrills, MD brought to us a high school ring from 1954. She was organizing her jewelry and found a ring she had purchased at a flea market three decades ago. She bought it for it's unique design and never really inspected the fine engraving until this past spring. Upon further inspection she realized that the ring she had was a lady’s 1954 class ring from Reitz High School. The client thought that an attempt to locate the owner should be made.
The ring’s design only offered a year, high school name, and initials. Luckily, there was only one Reitz High School located and that was in Evansville, Indiana. School officials were contacted and confirmed that the ring appeared to be from their school. Unfortunately, they did not have any detailed records from that year. Reitz High School 1954 yearbooks were located but there were no females listed with the matching initials. Further investigation discovered that the class was having a reunion in October 2013. The reunion coordinator was located and told the story of the ring. The coordinator did not recognize the initials. She also searched class lists and yearbooks to no avail.
The summer passed with no more leads. In October, we contacted the reunion coordinator once more so that she could bring up the conversation at the reunion. As luck would have it the coordinator had found a possible lead over the summer but had lost our contact information. A name was provided, researched and contact information located. The possible owner was contacted and the ring described. She explained that she had dropped out of school in her junior year for personal reasons and never took delivery of her ring. She later completed her education but never was able to obtain the ring. She moved a lot after high school and assumed that the school could not locate her.
As can be imagined, she was thrilled to hear that her ring had somehow traveled to Maryland and been safely contained in someone’s personal collection for the last thirty years.
Monday, September 9, 2013
When someone knocks at the door, most people are very guarded as to how they answer. Either cracking the door or speaking through a storm door, we don’t let random strangers into our homes. However, because we pay a company for a service we allow strangers into our homes. We are so guarded as to our Internet privacy, yet we allow complete strangers to be alone in our homes. Once the worker arrives, are you the type of customer that follows them around, or do you leave them alone to do their work? Many people don’t feel comfortable looking over the shoulder of the worker, but maybe you should.
Take into account a few stories from the headlines.
- 2011-Anne Arundel County Police raided a Pasadena home and charged the owner of a cleaning service with theft. Police recovered thousands of dollars worth of jewelry that had been allegedly stolen from clients
- 2011-Milford, CT home contractor sexually assaulted client
- 2012-Maryland housecleaner was caught stealing jewelry from clients
- 2012-Hamptons, NY dog walker caught stealing jewelry from clients
- 2012-Missouri landscaper stole $200,000 worth of jewelry from clients
- 2013-NJ satellite installer sexually assaulted a client’s child
- 2013-NH home care provider kidnapped and sexually assaulted male client
TODAY National Investigative Correspondent Jeff Rossen reported that no law requires background checks for service workers. Yet, we allow them, alone, into our homes without questioning the company’s policies. After a service worker murdered her daughter, Lucia Bone began a company fighting for tougher restrictions. The full article can be viewed at our Information and resources page.
Employers have to walk a fine line when hiring and protecting their company from lawsuit, either for an improper hiring process or later injury to a client. EEOC guidelines protects against discrimination in the hiring process. One of those protections specifically addresses criminal background records and the records use in the hiring process. The applicant should be judged on their resume not their past criminal history. Unless an employer can show a reason why the applicant’s specific conviction, not their record in total, would disqualify them from the job the employer is discouraged from using the applicant’s record against them.
This is not a bad thing. National Institute of Justice studies revealed that one-third of all Americans have been arrested by age 23. With those kinds of numbers employers are bound to encounter applicants with criminal histories. To assist in the rehabilitation process some companies hire applicants recently released from prison and there are benefits from doing so. Many former prisoners are highly skilled or are freshly trained for specific jobs. Giving them a start helps them build their resume for life after prison. A company should be forthright to its customers regarding their hiring policies and screening process for the employees that will be coming to customers homes.
Background checks for certain professions are needed. Specifically, when the employee privately interacts with the customer or is alone in the customer’s home. EEOC guidelines do allow for the employer to screen candidates. As long as the job specifications as clearly stated, the applicant is afforded ample time to explain, and the reasons for denial are well documented. Companies can bolster customer confidence by providing them with certification that employees have been checked.
Hiring the wrong person puts a great liability on a company. Either from internal issues/violence or if that employee causes harm to a customer. There are no crystal balls that predict how or when an employee will go bad. There are numerous incidents of people with no criminal past being tempted while on the job to commit some sort of crime. Some carry a motive for the crime they only await the opportunity. Following EEOC guidelines on the use of criminal records allows the employer to make informed decisions on hiring and candidate placement. By conducting background checks and putting the right person in the right position, companies are doing their due diligence to protect the client against a criminal act.
Thursday, August 22, 2013
Summer vacation ends next week for most children. Some parents are ecstatic to get the kids out of their hair, while others will miss all the bonding. No matter the category in which you fall this is an excellent time to review safety with your child.
We all want to protect our children or just help them remember important information. However, we must be mindful of how much information about our child, is sent with our child. When you’re filling out labels on backpacks, lunch boxes, coats, binders, etc., take a second to think about what information is really necessary. Information such as names, addresses, and phone numbers can be very revealing. Child predators only need little bits of information to seem friendly and familiar to your child.
Someone that has your child’s name can be very convincing that the child should come with him or her. Unfortunately, child predators are a reality that is all too present, even in our own community. There are fifty-seven registered sex offenders with Odenton/Severn addresses. One for attempted solicitation.
When attending school orientations, pay attention to the school’s plan for emergency events. If not presented-ask. Know what the notification system is and that your contact information is up to date. Know where and how parents are to respond to the school in the event of an emergency.
Cell phone cameras make it easier than ever to keep current photos of your children. Whenever you go to busy public areas or they have field trips, take a photo. If needed, you would have a current picture of your the child and their clothing to give to the police.
Children will also be walking to and from school and maybe coming home to empty houses. Drive safely and be mindful of children walking. If your child comes home to an empty house, sent up a notification time and method. Establish trouble codes. If you don’t hear from you children do not assume everything is OK. Contact them right away. Better to over react than not at all.
Be smart and safe.
Wednesday, July 24, 2013
We’ve spoken to several business owners about checking their employee’s backgrounds and driving records. What is most troubling is that many employers want to keep on their blinders. They don’t want to know about their employee’s past. Which might be OK for social issues or even criminal issues. Because the employee’s past does not directly affect their job performance or skills. Many employers hire those who have been released from prison. Which is a good thing. Most State correctional facilities have step down programs and teach vocations, employable skills, and most inmates finish or further their educations.
What is troubling is the failure of employers who employ drivers as their primary workforce to check driving records. Most drivers are entrusted with large capacity passenger or heavy cargo vehicles. The employer is more concerned with the skill the employee possesses than the performance of that skill. Many say that if they checked into their drivers past they would not have any drivers. Another one is, “We only hire people we know”. Well, how well do you know someone? If your “friend” is forty and you’ve known them for five, or even ten years, that seems like an eternity. However, they’ve had twenty-two years of adulthood before you ever met them.
So maybe the reasoning is the liability the employer would assume if they hired a driver with a questionable record. Would that liability be lessened if the driver was employed without a check and was at fault while driving the company vehicle?
Liability may exist in either scenario and would depend on the industry standard. Some businesses regularly check their employees for certain positions while others do not. Does a business have benchmarks for what is considered dangerous? Just because the employee has driving infractions this does not open the business to liability. Non-moving traffic violations can be far less of an issue than moving violations. Even moving violations have degrees of severity, such as “failure to reduce speed to avoid an accident” as opposed to “ negligent driving”.
For those who occupation is ”driver”, isn’t their record a performance review of their skills? If you hired a carpenter and were able to access a database that listed carpentry infractions wouldn’t you like to have this information? Record checks can verify resumes or skill levels. This was a simplistic comparison, but if you were concerned only with your employee’s skills, wouldn’t you want to know everything? Why is driving any different?
Here are a few instances of drivers involved in accidents in which it was later discovered that they had previous traffic violations.
- July 2013-Dayton, OH-Ice Cream truck driver possesses a suspended license and has 27 arrests for a variety of offenses
- February 2012-Chesterfiled, NJ-Driver of school bus involved in fatal accident had undisclosed medical condition that prohibited from driving a bus
- March 2011, New York-Driver of bus in accident that killed fifteen had previous driving violations.
We have discussed this topic with attorneys who have said that they have had different experiences. Most of their clients and companies they know do check their driver’s records. Regarding liability, it would be more prudent to check your drivers than to not. Just because someone has infractions on their driving record, that alone does not make them a poor candidate to hire. If one of your drivers has an accident and you find yourself in court, it is easier to defend your policy of hiring a driver with violations than not checking at all.
Tuesday, July 9, 2013
As a business owner what is the price of not doing your due diligence in regards to employment screening? Is it the expense of making a bad hire and then paying for benefits, training, maybe uniforms? Poor hiring decisions can sometimes add up to three times the salary of the job. Maybe it’s not recognizing that the applicant exaggerated qualifications on their resume. Recent surveys have shown that at least one-third of all resumes have some degree of embellishment. As the job market gets tighter, applicants will become more desperate to get their resumes thru the electronic filters and to the top of the stack. Not discovering that the applicant has a propensity for violence can result in difficulties in supervising the employee or worse, dealing with a workplace violence incident and the aftermath of legal claims.
Businesses have to follow strict hiring guidelines established by the EEOC, FCRA, and States, while still having the responsibility to provide a safe workplace and hiring the most qualified person. The courts are beginning to see litigation against businesses for improper hiring practices or administrative actions when an employee causes harm. In February 2013, a cabdriver employed by an Alexandria, VA cab company shot and wounded an Alexandria police officer during a traffic stop. The officer is suing the cab company for $10 million in total damages for negligent hiring and negligent entrustment. During the four years the driver was employed and prior years, he had been charged and/or convicted of several violations.
- Failure to obey a traffic signal, 2007
- Speeding, 2009
- Failure to pay attention, 2012
- Failure to obey a highway sign, 2012
- Tampering with a vehicle, 2011
- Speeding, 2007
- Failure to wear seat belt, 2007
- Failure to pay full time and attention, 2010
- Speeding, 2011
- Failure to obey a traffic signal, 2013
- Violation of good behavior on a misdemeanor offense
- Illegal sale of unapproved equipment
- Misdemeanor assault, 2011
These charges appear to be traffic related in nature and do not show any indication of violent behavior. The case has not been adjudicated or the arguments published so we do not yet know how the driver’s traffic record plays into the act of violence. It does seem that a company hiring this person as a driver should have more closely scrutinized his driving record or have documented reasoning as to why he was hired in lieu of such a record. While the outcome is yet to be determined, the company is having the expense of defending its hiring practice in preparation for court.
It is easier to defend sound, documented reasoning than to have no defense at all. In the hiring of drivers, people feel that driving records are secondary to skill or familiarity. More than once I have heard the excuse, “If we checked records we wouldn’t have any drivers” or “ We only hire people we know”. Say that to a jury while clicking your heels and maybe the lawsuit will disappear.
With governments converting more data to digital formats and becoming more open with their records, employers also get caught in the Internet trap. They feel that they can check records themselves. In a recent blog "National" records checks?, April 11, 2013", I explained the process of criminal record data collection and availability. There is no national database for all criminal records and certainly not a single place where you can find all driving records. So employers who feel that they can simply check their State’s available records are potentially missing huge amounts of data about their prospective employee. Data that you can be sure will be revealed in court.
Also necessary is to properly identify the applicant. Not that they are using their twin for the interview, but that they are who they say they are. Many people, either to avoid detection or for personal taste, use different names or variations of their given name. Depending on the situation, whether it is financial or judicial, the name variations can result in different returns during searches. This may not be discovered unless the background check itself reveals the name variations. The DIY employers would miss this.
Pre employment screening is more than a quick check of an applicant’s criminal record. The employer has to have a thorough process that is used equally, fairly, and within hiring guidelines. Many factors go into selecting the correct applicant for the job. Selecting the wrong candidate will cost the employer. You wouldn't buy a used car without having it checked by an authorized mechanic. Why risk your business by not "checking" your employees before hiring them?
What are you willing to pay for hiring the wrong person? As they say, everyone has their price. What is yours?
What are you willing to pay for hiring the wrong person? As they say, everyone has their price. What is yours?
Monday, June 17, 2013
Summer is here and the travel season is gearing up. Whether you’re goin’ down the ocean or staying in a five star European hotel identity theft and security should be on your mind. You want to enjoy your travel but have to keep your guard up. Sadly, unwinding and relaxing may make you vulnerable. Your habits about purse snatchers, pick pockets, and how you handle your money will stay with you on vacation. However, we tend to get complacent about unpacking everything and locking the room when we leave, thinking everything is secure. Remember that you are not the only one with access to your room. If someone doesn’t have a key, the digital locks can be easier to “pick” than mechanical locks.
Depending on how and where you travel you may have any combination of electronics, jewelry, cash, credit cards, and personal documents. Common thieves as well as identity thieves are looking for anything they can get their hands on. The trick is not making it easy. Although, even your best intentions can be thwarted by tenacious thieves and lack of security options.
During some recent travel I had the opportunity to stay at five different brands of midrange hotels. There was one common observation made in all five hotels-The room safes are disappearing. Research did not reveal any reason why hotels are removing room safes. The places I stayed were all new or fairly new builds. So, this appears to be a new trend. Maybe not as secure as the hotel safe, room safes do offer a higher level of security than leaving items in your luggage.
A friend reported staying at a nice, but off brand motel. They left the room and stored electronic devices in their suitcases, under clothes. Those suitcases were then put in a closet under other suitcases. After returning to the room they discovered that the electronics had been stolen. Thieves know we hide valuables in the room. Not only did they feel the victimization of the theft but also that someone had gone through their room and luggage.
Time and opportunity are part of any successful crime. If someone has access to your room, with a good idea that you’re gone for several hours, they can thoroughly go through your room and take anything they want. The more time a thief has the higher percentage they will be successful. Suffice it to say that nothing is totally secure. If someone wants in bad enough, they’ll get in.
Travelers have to make themselves uninviting or bothersome targets. If a thief feels that it would take too much time and effort to attempt the theft or notes nothing valuable, they’ll move on.
Some simple things you can do to help make yourself less vulnerable to theft or identity theft.
- Don't carry all of your credit cards on you
- Notify CC companies of extended travel
- Make copies of licenses/passports. Leave a copy at home and take one with you
- Use hotel safes, don't leave documents or valuables in your roomUse bank ATM's, not independent machines
- Secure your smart phone against unwanted access
- Install an app that allows you to track/shut down/erase your phone, laptop, and tablet
- Think twice before using credit cards in unfamiliar businesses, use cash when you can.
- If you have to leave valuables in the room make it difficult as possible by hiding what you can and locking luggage.
Thursday, May 23, 2013
On Thursday, May 2, 2013, Governor O’Malley signed into Maryland law restricted use of medical marijuana. Academic centers will be allowed to apply to a commission to distribute marijuana grown by federally or state licensed growers.
Marijuana is still considered illegal under federal law. As with other states that have passed similar legislation, Maryland is now thrust into the debate of federal jurisdiction over the states. Employers are also in this mix when they discover employees who are prescribed marijuana for medical conditions and are violating company policy.
Maryland became the 19th state to legalize medical marijuana, although the program will not be implemented until 2016. Supporters of medical marijuana do not consider Maryland’s passage of a law a victory. Maryland’s law is more research based and does not allow for growing or dispensaries as in other states. Further, it will be difficult for patients to obtain. For these reasons, Maryland employers may not have to worry about this issue for quite some time. While we wait, we can watch how the topic plays out in the courts.
The first of what will most likely be many challenges has already occurred. The Colorado Court of Appeals recently upheld the firing of a man who failed an employer random drug test for marijuana use. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supports employer rights to enforce their drug policies.
Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient because he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case is the first to look at whether off duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off Duty Activities Statute. This statute states that employers cannot fire employees for doing legal activities while not at work.
Colorado has had medical marijuana laws since voters passed a constitutional amendment in 2000. In November 2012, Colorado became the first State to have the medical marijuana laws upheld by the voters.
Court of Appeals Chief Judge Janice Davidson wrote in the opinion, “While we agree that the general purpose of (the Lawful Off Duty Activities Statute) is to keep employer’s proverbial noses out of an employees off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”
Employers have little authority in controlling employees off duty activities when those activities are legally conducted. When the activities are illegal, violate established company policies, affect performance, or directly reflect on the company, then the employer has cause to take action.
Currently, Maryland does not have a law similar to Colorado’s “Lawful Off Duty Activities Statute”. Maryland is an employment at will State, meaning in the absence of an express contract, agreement or policy, an employee may be hired or fired for almost any reason, or for no reason at all. Of course, there are exceptions based on discrimination, retaliation, denial of employee rights, etc.
Thursday, May 16, 2013
In February I posted about Tampa being the latest city to pass “ban the box” legislation. Since then, Maryland has joined seven other states by recently passing legislation that removes the criminal conviction question from state employment applications. Maryland’s governor signed the bill into law on May 2, 2013 and it will take effect October 1, 2013. Currently, there are fifty cities or counties nationwide with similar laws and legislation being heard in more jurisdictions each year.
The Maryland law applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services.
Other States with statewide laws are:
Hawaii-public and private employment
Massachusetts-public and private employment
New Mexico-state employment
The National Employment Law Project estimates that there are 65 million Americans with criminal records. The interest in employers to conduct background checks also continues to grow. It is reasoned by supporters that many qualified workers are not given the opportunity for employment. In this digital age of job application submission it is difficult enough to clear the candidate filtering process. Applicants are grateful for a chance at a face to face interview. Those with criminal records would like the opportunity to address the issue and not be judged on the record alone.
Most jurisdictions’ laws regulate government hiring. With some exceptions, the city/county laws apply to government applicants or vendors. Hawaii and Massachusetts laws apply to public employers as well as state. As the interest in such laws continues to grow, all levels of government are hearing legislation. The U.S. House of Representatives heard a proposed bill in 2011. Yearly, this issue is raised in state legislative and city/county council sessions throughout the country. In early 2012 there were 32 jurisdictions and as of April 2013 there are fifty.
Many public companies have not removed the question, but have deferred background checks on applicants until after the interview process. Others have voluntarily removed the question. Either way, private employers have to pay attention and adjust to the ever changing landscape of the hiring process.
Visit our site to review the new Maryland law http://mazzellainvestigations.com/informationresources.html
Visit our site to review the new Maryland law http://mazzellainvestigations.com/informationresources.html
Monday, May 6, 2013
Providing a safe work environment is the responsibility of every employer. The Occupational Safety and Health Act of 1970, requires employers to provide employees with working conditions that are free from known dangers. Most associate OSHA with the physical hazards associated with occupational safety and health issues, which is correct. However, there is more involved than protecting against physical hazards. Who you hire, protecting against workplace violence, and being prepared for acts of violence in the workplace are all components of a safe workplace.
Hiring the right person for the job is the one component that is often overlooked. Why should you do employee screening? The expense of making a bad hire is generally three times the salary of the job in question. One third of all resumes have some lies, so you need to ensure the applicant is who they say they are. Workplace violence amounts to 18% of all crime. Those with a propensity for violence can be discovered before they’re hired. Workplace accidents can be reduced because the applicant was thoroughly vetted and has the skills for the job. Liability. Employees or others who may be harmed by an under qualified or violent employee can sue the employer. The safety of all involved is put at risk when the employer does not check into the applicant’s background.
Safe working conditions are always on employer’s minds. The impetus behind the Occupational Health and Safety Act was to prevent workers from being killed or injured while at work. The U.S. Bureau of Labor and Statistics reported over 4,000 deaths attributed to workplace injuries in 2011. Private sector injuries had an average of eight days of work missed. Assessments of the workplace are necessary and constant.
Just because a condition was fine today doesn’t mean that conditions will not change. Employees have to know why policies are in place and understand the reasoning behind the policy. They also have to see that management takes safety seriously and practices the safety policies. Employees have to be trained on all machinery. If it is determined that personal protective gear is needed to reduce injury, employees have to be provided the necessary PPE as well as be trained in its use. Whenever there is an incident, the employer should determine the cause, provide solutions, corrections, and retraining so that further exposure to an unsafe condition is removed.
Workplace violence can happen anywhere to any type of business. Whether a disgruntled employee or customer, or the perpetrator chooses your business to commit the act, the possibility has to be considered. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries, of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides. Homicide is the leading cause of death for women in the workplace.
First, it must be understood that individuals do not “snap”. Studies have shown that individuals who commit acts of workplace violence are set on a pathway to violence well before the act occurs. There are indicators that the person’s life is going off track and these indicators are manifested in daily interactions. Changes in mood or mood swings, becoming introverted, violent outbursts, or other changes in personality may indicate that something is wrong. Talking about violence and threatening others, or property destruction, and strange computer activity may be more indicators. Bear in mind that not one action may indicate that someone is about to act out, but changes should be noted. The decision to act is usually caused by a triggering event. Triggering events are usually a perceived wrong against the person or an attack on their ego, such as loss of financial stability, divorce, loss of promotion, or being overly disciplined.
Employers should have policies and plans in place to deal with workplace violence. Employees need to feel confident that they can report abnormalities and that action will be taken. They should be trained in how to deal with violent employees and evacuation methods. Security strategies used to prevent crime against the business work well in preparing the environment for acts of violence. Security doors and cameras, clear line sight throughout help identify and prevent against potential threats. Employers should know their employees and be able to identify when something just isn’t right. Simple intervention and counseling early on could prevent acts of violence.
Providing a safe work environment is not just about working conditions. Employers have to take into consideration all the factors of workplace safety: Hiring, Safe conditions, and Workplace violence. Simple prevention strategies, employee training, and response may save lives and keep the employer out of court.
Thursday, April 11, 2013
We are always asked about conducting national criminal record checks. This request is difficult to explain because most people’s perception of the criminal justice system is marred by television. Simply put, there is no “national” database that houses criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. The closest to any semblance of a national database is the FBI’s fingerprint database, which was introduced in 1924. However, the FBI system is a repository of fingerprints submitted by law enforcement used for identification purposes, not a criminal record database. Criminal records are associated with the fingerprint files and one can obtain someone’s criminal record, but only to the extent that the data is submitted. The computer adage, garbage in-garbage out applies here.
The FBI is fed fingerprints by law enforcement. If a law enforcement agency doesn’t submit fingerprints on a particular individual or at all, then there is no record. If the fingerprints are unreadable, then there is no record. The submission of the fingerprints also includes the criminal charges associated with why the individual was arrested. This is the part that makes up the criminal record database. This part can be flawed also. If the fingerprints were not submitted each and every time the person is arrested, then there would be gaps in the person’s history. Additionally, only the arrest charges are submitted with the fingerprints, not the disposition of the case. So, that part is missing from the records.
This is not to say that the FBI fingerprint system is not the best in the world, which it is, and the records are highly reliable. The point being made is that the fingerprint system being used for criminal record checks does have holes. Further, only law enforcement has access.
Conducting a national background check in private industry would be better said as a “nationwide” check. States do a fair job of collecting data from within the state and compiling the data in one repository. However, there is, again, the submission issue. Not all counties, cities, or towns submit arrest and conviction data to the State.
There are data mining services that will search all of the available State and County records and compile the results in to one report. The word “available” is used because not all states and counties make their records accessible to free public inspection. Additional fees and access are needed. More holes in the record search process.
Even with the use of fingerprints, state and county records should be researched to obtain a thorough background check. Even after these computer searches are made and records are found does not mean that what you have is 100% accurate. Your search needs to be verified through actual court records. Which are maintained in the courthouses.
Then you have the Federal judicial system, which is separate from all others. Records are housed in this system’s database as well and require separate searches from all the others. Federal searches are not usually included in most pay services.
Sometimes the records that are received from one source are incomplete, but another source has different information from the same incident. In this case the information from both sources needs to be verified and combined.
To obtain a thorough picture of a person’s criminal past, all levels of government entities maintaining criminal records should be searched. Additionally, the records need to be associated with the offender. This is where the use of fingerprints to ensure the identity of the person associated with the record is helpful. If not through fingerprints, then matches on name and numerical identifiers have to be used to verify the record is associated with the person.
Expunged records are another issue and topic for another blog. Let’s just say that, as with all legal terms, expunged has different definitions in different States; meaning that records of “expunged” cases can be found in the digital world.
Criminal records are just one part of a detailed background check. As you can see, it is not as easy as typing in a person’s name and getting back a complete report of criminal history. To be accurate and completed properly, a lot of searching and analysis goes into the process.
Thursday, March 21, 2013
March madness has descended upon us once again. Brackets are being completed and water cooler talk turns to basketball. Research companies spend millions conducting surveys on how much productivity is loss in the workplace due the NCAA tournament. Some companies buy into the fears and direct IT departments to monitor and restrict network time and strictly enforce company policies.
Modis, an IT recruiting company conducted a survey regarding the burden put on IT professionals. The survey found that 42% of IT professionals responded that March Madness historically impacts their networks. 37% reported a network slow down and 34% reported that networks are essentially shut down during the tournament. Expecting increase in network burden, 65% of the survey’s respondents said that their IT departments took some action to slow or hinder streaming video. Jack Cullen, president of Modis said of March Madness time, “It’s an event that boosts office morale and builds camaraderie for many American workers, but it can put a significant burden on office networks, and the IT professionals responsible for maintaining them.”
Employees watching games is a burden to computer networks, but how does March Madness affect worker productivity? Challenger, Gray, & Christmas, Inc. is one of the most popular research companies when it comes to tracking worker productivity during March Madness. The results of the Challenger, Gray, & Christmas, Inc. survey for 2012 reported that 2.5 million workers spend 90 minutes a day watching basketball. With employers paying distracted workers some $175 million over the first full days of the tournament. Further distraction comes prior to the tournament while workers spend time completing brackets.
Statistics are showing hours and dollars loss, but what is not measured is how many workers who put in extra time or multi-task to make up for the loss time. With the prevalence of streaming video, workers are able to watch games from their desks while completing other tasks, either through company computers or personal devices.
Experts concede to the burden on networks, but also agree that March Madness builds worker morale and camaraderie. While some companies go out of their way to impose tighter restrictions, some embrace the time. To help ease network traffic, some companies install TVs in break rooms or have events and their own brackets or pools.
Whatever your position on this time known as March Madness, employers have to balance protecting their networks while at the same time ensuring productivity meets standards while not affecting worker morale. Good luck.
Tuesday, March 5, 2013
Newly revised FMLA regulations published on February 5th by the U.S. Department of Labor. Covered employers (those employing 50 or more employees for 20 or more weeks in this or the preceding calendar year) have until March 7th to ensure the new poster is posted and that they are using all the new and updated forms.
The new forms and poster are now available on our website by clicking the below link.
Monday, February 25, 2013
The Odenton Shopping Center has been a firm fixture in western Anne Arundel County, MD for the last fifty years. Some have recently called the shopping center an eyesore. Those of us that have lived in the area for most, if not all, of our lives remember the Odenton Shopping Center as the town center; the center of commerce for the surrounding area. You could shop at WT Grants or have a casual lunch at the store’s diner. Kids could grab a soda from Beacon’s Pharmacy and then head over to Western Auto for bicycle tire patches. A man could pick up his tailored suit from Gordon’s while his wife shopped at the Princess Shop. Get your haircut at Odenton Barbershop; pick up dinner at the A&P, and a bottle of wine from Odenton Liquors.
Over the years, stores have come and gone. Odenton Barbershop has survived almost fifty years and Odenton Liquors almost forty. There always seemed to be a pharmacy, auto parts, and clothier. The other staple was a department store and/or grocery store.
What happens to a shopping center when the anchor stores leave? When the larger national chain stores leave there is less traffic to the shopping area for the independent stores. Can the smaller independently owned businesses survive without the traffic driven by the anchors? Superfresh closed in 2011 and has yet to be filled. CVS has closed and moved across the street.
An anchor store is defined as a larger store, usually a department store of a national retail chain. But you could also argue that an anchor is a stable merchant that has been in the same location and supported the community for decades. According to the International Council of Shopping Centers, the presence of anchor stores defines the shopping center type, in this case a neighborhood center or community center. A neighborhood center is designed to provide convenience shopping for day to day needs of consumers in the immediate neighborhood. A community center offers a wider variety of apparel and other goods, usually having a supermarket, super drugstore, or department store. Walkable, mixed-use areas are becoming the popular design. While the Odenton Shopping Center is on a major thoroughfare and is accessible to pedestrians from the hiker-biker trail and older communities behind it, it does not fit into the current design philosophy of developers.
I spoke to several of the existing business owners or managers. There were differing reactions to the amount of business that has been loss or gained. Depending on the type of business some have seen steady customers or a slight increase. Others have had to restructure their inventory to attract a different customer base. All agreed that the presence of grocery chain would increase their clientele and, of course, benefit the strength of the shopping center.
There are currently four vacant spaces. From what is publically known the departure of the Superfresh, CVS, and Fashion Bug stores were not due to the lack of the customer base or the shopping center, but rather corporate decisions that affected the chains nationwide.
We are watching the Odenton Shopping Center devolve from one defined type of shopping center to another. The question is which way is the shopping center heading? Will it continue to loose tenants and become a strip with empty space? Attract a national, large capacity retailer? Or fill the space with more locally owned retailers to service the needs of the community.
Saturday, February 16, 2013
Throughout history, tattoos have had varied purposes as art, cosmetic, spiritual, and fraternal/military. Not only those of the counter culture tattoo their bodies. Life magazine estimated in 1936 that 6% of the American population had tattoos. According to a 2006 Pew Research Center survey, 36% of those ages 18 to 25 had a least one tattoo. The US Department of Labor, Labor Force Statistics from the Current Population Survey 2010, lists 18 to 25 year olds as making up nearly 40% of the labor force. Employers are bound to encounter a job candidate who has a visible tattoo.
When making hiring decisions employers have to be careful not to exclude applicants because of the way they look or for religious reasons. Employers may have dress codes and policies against visible tattoos, but even established policies can be challenged if the applicant's appearance has no bearing on their qualifications. With regard to religious tattoos, the applicant/employee may have exposed tattoos to show the commitment to their faith or a rite of passage. Title VII of the Civil Rights Act of 1964 requires “employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business”.
Generally, laws will support the employer who has policies that require that the employee represent the company image. What if there is a highly qualified applicant that has no interaction with the public? Employers have to consider the applicant’s qualifications, job description, location of the tattoo, and the company's policies when hiring. While facial tattoos may not be appropriate for front line employees, the employer may be more receptive for the behind the scenes employee.
When an employer has ambiguous policies towards tattoo location and attempts to define appropriateness they could open themselves to litigation. Company policies have to be clear. Permitting "non-offensive" or "discreet" tattoos crosses the line into interpretation. Everyone's definition of "offensive" is different. Is the tattoo design or location offensive? What's not offensive today may be offensive to an employee hired at a later time.
As with all company hiring policies, employers have to ensure they are not denying a specific group the opportunity for employment. Employers have to remove their personal biases to protect the company and hire the best possible candidate.
How do you feel? Does having visible tattoos say anything about a person's ability to perform the job?
Monday, February 4, 2013
The city of Tampa passed legislation in January 2013 to remove the criminal history question on employment applications. Tampa became the latest in a growing list of cities that have passed such laws. In February 2012 there were thirty-two cities. Tampa now makes forty-six. In our area, Baltimore, Wilmington, DE, and Washington, DC have laws preventing asking about criminal history. Currently, seven states have statewide “ban the box” laws. A bill was introduced to the U.S. House of Representatives in July 2012, but subsequently died in committee.
Removing the question, “Have you ever been convicted of a crime” or any inquiry about criminal history from employment applications has become known as “ban the box”. The movement of the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed, thus, allowing the applicant to be evaluated on their qualifications.
As part of the screening process, most employers perform criminal history inquiries. In a survey conducted by the Society of Human Resources Management, 92 percent of their members perform criminal background checks on some or all candidates. It is inevitable that employers are going to come across applicants that have criminal records. The National Employment Law Project estimates that over 65 million Americans have some sort of criminal record. The cost of making a poor hiring decision can cost a business $10,000-$50,000, depending on the level of employee hired.
Employers need to do their due diligence to avoid bad hires. At what point in the process the employer asks about criminal history and what value the employer puts on criminal records over qualifications, are two important points to be considered.