Providing investigative services tailored to the business community introduced me to small business owners. Many of them, as well as myself, with questions about the logistical and legal issues faced by businesses. This blog was started to address the questions. Although I’ve moved on from the investigative field there is still a desire to offer common sense solutions to small business owners. Sometimes we cover non business issues. Hope you enjoy reading. Please feel free to share. Subscribe
Walking along the crowded sidewalk was actually a welcomed
experience. Maybe it was the warm December day two days before Christmas, maybe
the rainy weather sending people to the covered walkway, or maybe the now open
grocery store. For whatever reason, it was nice to see the Odenton Shopping
Center busy with shoppers.
Odenton Shopping Center once had a grocery store and
department store to anchor either end. Two years ago we wrote about the history
of the shopping center and the endearing meaning it has had to the community in
the last fifty years, Anchors aweigh!The
center had been on the decline since the department store closed decades ago
and the grocery store closed in 2011. On December 14, 2015, Giant Food opened
in the empty grocery store space. Once again bringing a major anchor to the
Since the Giant opened, the parking lot, throughout the
center, has been full. It’s only been a week but the other businesses should be
seeing some residual effect. With all of the development taking place around
Odenton, it is certainly pleasant to see the center full of people and once
again a vibrant part of the community.
Some idioms you can live by-Can’t judge a book by its cover.
Every cloud has a silver lining.Do
unto others as you would them do to you. Words to live by. With our primal
drive to always get the best price on absolutely anything, probably the most
important during the Christmas shopping season is-Too good to be true.
We are always looking for the better deal. Especially this
time of year when our gift giving budgets are stretched and maxed. If it’s
cheaper somewhere else we’ll drive half away across the State to save a few
dollars. That’s what makes us particularly susceptible to con men and scam
artists. The good ones prey on our sensibilities and that feeling that we’re
getting over on someone. Willingly acquiescing to our negotiating prowess to
make us feel like we won. When in reality they won big. Oh the elation we feel
when the story is told of how we adeptly bartered with some rube until we got the
item for almost nothing.
This is why people buy used luxury cars for less than half
of blue book, only to later find out that the car was stolen and re-titled. Or
why people buy jewelry from that guy on the street or stereo equipment from
unmarked vans. It is also why we are so quick to give up personal information
and send money to email and phone solicitors.
It’s like when the good you and evil you are on opposite
shoulders, except now one is sensibility and the other is a dollar sign. You
know it walks like a duck and even sounds like a duck but oh my goodness what a
price! You actually pause and
think, “This can’t be right”, but you make the deal anyway.
Sometimes the police don’t come and take the Mercedes or the
Klipsch speakers. Sometimes a Nigerian prince really does need your help. Most
times, listen to the smart you.
Can you believe Halloween is next week? Retailers have even
begun stocking Christmas decorations. Crazy, yeah, but let’s deal with
Halloween first which is not a fun time of year for all. Safety and protecting
children is always on parents’ minds. One topic that comes up every year is the
identification of sexual predators in the community and whether or not such
identification infringes on that person’s safety and rights.
Throughout the U.S., states have programs that
prohibit registered sex offenders from participating in Halloween activities
such as decorating or passing out candy. Many require that offenders notify the
public by placing a sign on their residence indicating that they have no candy.
MD Dept of Parole and Probation, who manages the Sex Offender Registry, has had
a similar policy since 2005.
On October 14, 2015, A Federal lawsuit was filed
in California claiming that such laws violate the First
Amendment and puts sex offenders on parole in danger. The argument being
that the signs compel speech and identify offenders who have no means to
protect themselves due to not being able to possess firearms.
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.
That suit alleged that the city of Orange is violating sex offenders First
Amendment rights by requiring the posting of signs on Halloween night. Lawyers
felt that the ordinance placed sex offenders at risk. They also cited that
there had not been a documented incident of a sex offender harming a child on
However these cases play out in court, nothing protects
our children more than being involved. Chaperone your children, know where they’re
going. Watch for and report suspicious activity.
iPhone®s have a feature that enable users to share files via
Bluetooth®. You simply activate Bluetooth® on your phone and search for the other
person’s phone signal. Rather than send several emails or texts with photos it
is simple file transfer. We successfully completed this method of file sharing
in a public setting. Very simple and convenient. What was noted was the number
of open Bluetooth® connections that were also within range. This is like
walking around with your purse wide open or leaving your car keys in the door
Bluetooth® use developed slowly, but once other
technology caught up it’s use exploded. Bluetooth® was developed in the early
1990’s. It wasn’t until 2000 that the first mobile phone with Bluetooth®
technology came to market. In 2001, laptops and peripherals (printer, ear
pieces, car kits) came to market. The next several years produced everyday
items that could connect via Bluetooth®, such as TVs, glasses, watches, and
appliances. Around 2005 is when Bluetooth® became a popular feature on
phones. After Smartphone’s took off in 2007, it became a standard feature and
every year since more uses between phones and other devices have been released.
Hacking into Bluetooth began almost as soon as it became
widely available on phones. Once consumers began using their phones for more
financial exchanges and social media hackers seized on the opportunity to
exploit users lack of knowledge in regards to security and Bluetooth®
connections. Most phones at startup activate the Bluetooth®
feature. The user has to purposely turn off the connection. However, few do,
either because they are unaware or actually use features such as earpieces or
car connections. When not using the devices users leave their phones in the
As with Wi-Fi, hackers love sitting in public places
scanning for phone signals in public places. They setup shop in common, high
traffic (use) areas by sending an open Wi-Fi signal or intercepting Bluetooth®
connections between phones and peripherals. Bluebugging is a term to
describe identity theft by hacking access to mobile commands
on Bluetooth®-enabled devices that are in discoverable mode. Your phone is
tricked into thinking that it is connected to the peripheral when it is
actually connected to the hacker’s device. Once intercepted the
hacker can take control of the device and/or retrieve data.
In July 2015, hackers successfully hacked into the system of
a Jeep Liberty, taking control of the vehicle’s comfort, operational, and
safety systems too include braking. This was done purposely to prove the
vulnerability to automakers. But if one person figured it out you can be sure
there is a long line of others.
As of this writing, research revealed there was little data
regarding the number of Smartphones or personal accounts used on Smartphones
that are hacked. It is doubtful that the lack of data is due to a low
occurrence, but rather lack of realization, little reporting and/or notice by
the media. You may occasionally see a flip phone or non-Smartphone but these
types of phones are becoming rare. Many carriers do not offer these types of
phones. There are an estimated 183 million Smartphone users in the U.S. alone,
2 billion worldwide. Next time you’re in public take a moment to look around
and let it sink in how people around you have phones. Probably safe to say
Just as your home computer became vulnerable in the 1990’s, your phone is now the
target. Only with your home computer you almost have to invite the hacker in
through malware or ill advised website visit. Your phone on the other hand is
with you all the time exposing it’s signals to the public wherever you go.
Most times you won’t even realize that your phone has been
hacked. Not until strange social media posts surprise you or you notice
withdrawals from your bank account. You home computer will get a virus. You’re
email account will be hacked. Your credit card information will be stolen. And
growing every year, someone will be kind enough to file your taxes for you, for
the small fee of receiving your refund.
Eventually your phone will be hacked.The best you can do is try to limit
your vulnerability by keeping the doors shut.Limit you public broadcasting of a Bluetooth® signal and use
of public Wi-Fi. Turn off your Bluetooth® when not needed. If you do use
password protected accounts through public connections, change your passwords
after each use. Watch your data usage for spikes. Constantly check your
financial accounts as part of your regular security routine.
Just like online security, our day-to-day conversations with
strangers can threaten our security. Most of the areas where we express
ourselves online are password protected. We can go back and edit things that
were written, change our personal data in profiles, Google even has an “unsend”
feature for email. The spoken word cannot be retrieved as easily. Sometimes we just talk too much to the
wrong people. We either offer up personal information or unknowingly provide it
when prompted by a stranger who knows how to extract information.
Every neighborhood has door-to-door salesman. Are they
pushing product or gathering intelligence? Some criminals pose as salesman,
going from house to house trying doors hoping not to run into anyone and making
note of what they can; alarm signs, cars in driveway, shrubbery, lights, the
presence of dogs, etc. Some are bolder by selling random products, services, or
free estimates looking to speak to homeowners, gain their trust and glean the
information they need through conversation.
A conversation was overheard between a female neighbor and a
salesman. The gentleman was selling organic cleaning products. He was very
charming, loquacious, and had quite the patter. Throughout a ten-minute, low
key, no pressure conversation in which he demonstrated his product, the
salesman was able to determine that the lady was willing to open the door, home
alone during the day, with one, two-year-old child, and no dogs. By sight he
could determine her age, physical makeup, and basic layout of the home as seen
through the front door. He never really asked any direct questions, but through
friendly conversation the lady was put at ease and freely provided the
Running con games on people isn’t the oldest profession but
it’s been around long time. People trying to trick and deceive are excellent
speakers. You can be in the middle of a conversation and giving up details
before you realize it. They manipulate conversation to their advantage. Mind
reading acts don’t actually intercept your brainwaves, they pickup on subtle
cues that are provided through your words and body language. Pronouns and
conjunctions can provide a lot of information if you know how to listen.
We do not want to be rude to others. We want to be friendly.
So it’s easy for others to approach and engage in what seems like innocent
conversation. The trick is finding that line that allows us to be nice without
providing our biography.
Do you offer paid leave to your employees? How about paying for
their vacations? A trend sweeping through the business world is doing just
that. Companies are rolling vacation time, sick leave, and any other time off
into one plan and offering their employees unlimited time off. While the concept is trending, the Society for Human
Resource Management says that only 1% of U.S. employers are offering unlimited
time off. Others are offering stipends, free adventure trips, and use of company
properties to encourage employees to take a break. The consensus of all
the new thinking being that happier employees are easier to retain and are more
Abuse? There’s not that much. Companies
that offer unlimited vacation tend to be invested in hiring responsible
employees who can balance taking time off with getting their work done. While
unlimited vacation can be hard for managers to implement, most employees
aren’t taking advantage of the perk. They get overwhelmed by
the possibilities or can’t find the right amount that they feel is a fair
amount to take. Employees still feel that their reputation will be damaged
if they are away from the office too much.
Americans only take about half of their earned
vacation days adding up to some $50 billion in lost paid vacation. A study
conducted by the U.S. Travel Association found that American workers averaged
16 days leave in 2013; down from 20 in 2000. While most companies praise
workaholics, people that don’t ever take off may being harming themselves and
the office culture. It’s been well proven that not being able to
disconnect from work can be unhealthy, but those individuals may cause
resentment and guilt among their coworkers. Oxford
Economics conducted a survey that found that 13 percent of managers were less
likely to promote employees who took all of their allotted vacation. The DIW
Economic Bulletin published a German study in 2012 that indicated employees who
took fewer days off earned almost three percent more than those who took all
their vacation time.
Too offer even more encouragement companies are giving
cash or other incentives to use vacation days. Some are also experimenting
with paying employees to take vacation by offering a percentage of their
salaries as a stipend or bonuses to help pay for the vacation, with
stipulations that they actually take a trip of at least five days and not just
stay home. Companies that aren’t offering the time off or stipends are
paying for Caribbean getaways or adventure type vacations. Again, the
idea being that a company that is a great place to work will have higher
Those working at more traditional minded companies
have countered with a plan of their own. Employees request what are becoming
known as “workcations”. This is where the employee is granted leave (time away
from the office) but they agree to telecommute while they are away. The
employee pays for the trip, but the leave is not charged against their vacation
Critics wonder how much work is actually being
completed while at the beach with your family. Some employers or tasks just
aren’t logistically equipped to handle telecommuting. Those concerned for employee
health question if employees are really benefitting from being out of the
office. Workers like the idea of a change of environment and feel that more can
be accomplished without the constant interruptions present in the office.
Further they can get away while saving their leave for life’s emergency that
pop up. Kenneth Matos, senior director of
research at the Families and Work Institute, says: “Is the workcation
detracting from the vacation you were going to have, or is it enabling the
vacation you otherwise wouldn’t have had?”
Either way, both companies and employees are getting
creative with their use of paid leave. Traditional time off is definitely
On May 12, 2015, Governor Hogan
signed into law two bills that will affect pre employment screenings. These
laws will take effect on October 1, 2015.
Maryland Second Chance Act of 2015-Authorizes
individuals who have a non-violent, misdemeanor criminal record to petition the
court to shield court records and police records after a period of three years
under certain circumstances and conditions.
Criminal Procedure - Expungement of Records-Arrests
and charges that did not result in a conviction may remain eligible for
expungement, regardless of subsequent convictions.
Mazzella-Investigative Solutions, LLC constantly monitors changes to statutes and regulations as they
relate to employment law and pre employment screenings to ensure you are
receiving the best possible service.
Labor Relations Board ruled in favor of an employee fired because of a rant on
Facebook against the employer. Perhaps more significantly, the company cited
violation of its obscenity policies, which the NLRB disregarded because the
policy was found to have been unenforced in past instances. Underscoring the
importance to enforce policies regularly and fairly. Not just when it is
convenient for management.
a two-to-one vote, a three-member panel of the National Labor Relations Board
upheld an administrative law judge’s findings that an employer unlawfully
discharged an employee because of social media comments, including strong
obscenities that were personally critical of a company manager. (Pier Sixty, LLC and Hernan Perez, et al,
NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.)
The company’s employees expressed interest in union
representation, based in part because of concerns that management treated them
“disrespectfully and in an undignified manner.” Those efforts resulted in a
successful organizing campaign, after which the Union was certified as the
exclusive collective bargaining representatives. Two days before that election
a long-term employee was working as a server at an event. During the cocktail
service a company manager allegedly approached and in a loud voice and in front
of guests addressed the employee and two other employees, using an
unnecessarily harsh tone, and waiving his arms. Upset with the manager’s
treatment, the employee took a break and, outside of the banquet facility,
posted from his phone a message to his personal Facebook page. The message
referred to the manger as a “NASTY M***** F***er” and a “LOSER!!!!,” stated
“f*** his mother and his entire f***ing family,” and ended with “Vote YES for
the UNION!!!!!!!” After being made aware of that posting, the company
fired the employee for violation of its obscenity policy.
panel determined the firing violated the NLRA because the Facebook post was
deemed to be protected concerted activity. Although the company argued that the
employee had violated company policy regarding obscene language, it was
determined that since 2005, the company had issued only five written warnings
to employees who had used obscene language, and had discharged no one on that
basis. Further, it was found that the employee's use of obscene language
in his posting was not “qualitatively different from profanity regularly
tolerated by the company.”
NLRB first ruled on “Facebook firings” in October 2012. The NLRB has ruled that
postings on social media regarding the way employees are treated or working
conditions are protected concerted activities under the National Labor
Relations Act. The company’s defense of policy violation in the aforementioned
case did not stand up because the policy itself was overlooked.
handbooks and rules are necessary for a safe and favorable workplace. However,
when violations of policies are overlooked the workplace can become a dangerous
and/or hostile environment. Additionally, employee morale tends to be low
because of managerial indifference or inequitable enforcement of violations.
When policies are enforced as a “CYA” measure, reviewing entities rarely rule
for the company.
The interview is a major part of the hiring process. In
addition to being encouraged by the EEOC, it gives the employer a chance to get
a feel for the applicant’s character and a chance for the applicant to be
forthright about their resume and anything in their past that may pertain to
the job for which they are applying.If there is a discrepancy, than a chance to elaborate.
We have clients that are not surprised by the findings of
screenings, because they have conducted thorough interviews and learned of past
indiscretions prior to conducting a screening. Sometimes though the applicant
downplays, tries to hides, or refutes an incident. That is when a more detailed
examination of the facts needs to takes place.
findings are based on the personal data supplied by the client. The results are
not verification of the record. Once the person is identified with the record
the original court records should be retrieved for actual verification.Life is not as television would have us
believe. There is not a single repository for criminal records. Records are not
always found in the employers home State. To locate any and all records,
queries should be made Federal, State, and even local courts. ("National" record checks)
Here are some
examples of how criminal records work with a good interview. Why are these
special? It’s what they didn’t and did tell their prospective employers that
makes the point. All were interviewed prior to the request for a pre employment
screening. Some were forthright and explained past indiscretions. Others rolled
aware and consenting to a pre employment screening, the applicant admitted to being
arrested for possession of marijuana during college, a lesser offense. When the
results returned multiple counts of more serious offenses, the applicant
continued to deny the convictions. State (Not Maryland) and county record
searches revealed more serious charges, but experience tells us that sometimes
the charges read more serious than the actual event. Further research of local
court records revealed that the charges were accurate. The applicant was
arrested and convicted of selling drugs to an undercover detective. A little more
than mere possession.
applicant said nothing of past criminal activity. Searches revealed multiple
felony drug arrests and convictions. However, FCRA guidelines prohibit the use
of criminal records more than seven years old in consumer reports. The deal
breaker on this one was not the criminal record but truthfulness and character.
The applicant arrived at the interview with an apparent injury saying that he
was currently on medical leave, expected to return. During employment
verification it was learned from the employer that the applicant was fired
weeks before for skimming money.
and out of State searches revealed no records for the applicant. However, our
routine searches of the Federal court system revealed past arrests. Again, FCRA
regulations prohibited the reporting of the records. When the report was
provided the client said that the applicant had admitted to the past federal
charges during the interview process. The client wasn’t worried about the long
ago indiscretions, but was more impressed with the applicant’s honesty and
The Equal Employment Opportunity Commission suggests that
the report be presented to the applicant and the applicant allowed a chance to
address the findings of the report. Before a decision of hiring is made. Allowing the applicant to talk about
themselves can yield a wealth of information about the prospective employee. Allowing
them a chance to honestly represent their past or defend the findings can yield
much more. Mazzella Investigative Solutions-Services
Most of our small business clients have never conducted pre
employment screenings. As the economy has tightened the need to hire the best
suited candidate has become more of a focus (The cost of a bad hire can be upwards
of $50,000). So smaller employers have sought to conduct pre employment
screenings to give them more information about their candidates. They know the
hiring basics (formal employment applications, conduct interviews, etc) but
rarely have they delved into an applicants’ character and past. When they do,
most have fallen into stereotypical hiring process traps that put them in
jeopardy of a court visit. Last year alone there were millions of dollars
awarded in class action suits for Fair Credit Report Act (FCRA) violations.
Some common mistakes employers make are:
Failure to have a disclosure
of the screening separate from the application
Burying the disclosure of the screening with application
Failure to provide proper pre-adverse action and/or adverse
Failure to include a copy of the report or a Summary of Rights
with the pre-adverse notice
Small business owners don’t have the benefits of human
resource departments. They have either just started a business or have been in
business for many years. Whichever the case, the Fair Credit Reporting Act and
guidelines set by the Equal Employment Opportunity Commission are news to them.
They are not intentionally trying to violate the rights of potential employees;
they just don’t know the rules.
Fair Credit Reporting Act
The Fair Credit Reporting Act(FCRA) was passed by Congress in 1996 and went into effect
September 30, 1997. As the Act is
titled, it was initially passed to regulate the collection and use of credit
information by credit bureaus. The goal being to provide consumers a way to
access information contained in their credit bureau files. Due to the ever
growing amount of incorrect information contained in these files, the act also
provided a mechanism in which consumers could dispute the records. Basically,
it is designed to protect the privacy of consumers and to guarantee that
the information supplied by reporting agencies is as accurate as possible.
The FCRA has been amended several times since being passed. With
negligent hiring and privacy issue complaints increasing since the passage of
the Act, the FCRA was amended to apply to all consumer type reports. Too
include the pre employment screenings completed during the hiring process. A
consumer report (the information collected during the pre employment screening},
contains information about the applicant’s personal and credit characteristics,
character, general reputation, and lifestyle.
The FCRA also provides procedures for obtaining consumer
information and how it is to be used and disseminated during a pre employment
screening. The Federal Trade Commission enforces all aspects of the FCRA.
Equal Employment Opportunity Commission
The FCRA regulates how consumer report data is collected and
used. Part of that data are criminal records. The Equal Employment Opportunity
Commission (EEOC) ensures that the information found in the criminal records
collected during the pre employment screening is not used to discriminate
against the prospective employee. This is where the employers’ fall victim-How
they react to and use the criminal record data.
The Civil Rights Act of 1964, Title VII, states that employers
cannot reject or fire qualified individuals who have criminal records when the
criminal history has no bearing on the individual’s fitness or ability to
perform the job. The EEOC is quite clear in its position on employers’ use of
criminal background checks for employee hiring and retention: “Using such records as an absolute measure to
prevent an individual from being hired could limit the employment opportunities
of some protected groupsand thus cannot be used in this way.” In
making a decision, the employer must consider the nature of the job, the nature
and seriousness of the offense, and the length of time since it occurred.
The FCRA states that the applicant has a right to view the
information contained in the consumer report and have a chance to dispute the
record.Following this lead, the
EEOC encourages the employer to personally interview the applicant and allow
them the chance to refute and/or explain the criminal record.
It’s all about being fair. The employer wants to make the
right decision to avoid later costs and problems. The applicant is seeking
employment. As with the decisions made in other areas of the business, the
employer needs to make informed decisions by reviewing and understanding all of
the information gathered during the screening process. This review process
should include a personal interview so the employer has the chance to hear the
rest of the story.
Twenty-five years ago it was the personal computing
industry’s goal to have a computer in every home. Today, over 65% of Americans
carry computers with them in the form of smartphones. With personal computing
permeating our lives (we check our phones over 50 times a day) Internet use has
grown exponentially. Questions and facts are all answered and checked during
conversations. It’s safe to say that there is nothing that cannot be found on
the Internet. This includes details of one’s personal life.
I read it on the
People become Internet detectives. Quick to check friends, family members,
and the pasts of love interests. Not sure what will be found, searchers often
dangerously jump to conclusions, without properly vetting the information. In
addition to the misinformation that circulates on the Internet, most people
don’t understand exactly what they’re reading. In the case of criminal records
one has to understand the difference between arrests and convictions. There are
also terms of probation that affect the final dispositions. When criminal
records are returned during a search, how do you know it’s the same person?
Quick Internet searches, without proper analysis, can cause embarrassment as
well as legal action.
How well do you know
Employers often say that they only hire people they know or
for whom others vouch, apply that to your personal lives. How well do you
really know someone? Other than someone you are with 24/7/365, everyone has
secrets. Has anyone ever thought so much of your relationship that you were
listed as a reference to obtain a government clearance? Answering those
questions about social habits and character can really open your eyes as to how
well you really know the person.
Do not be so quick to pass judgment on what you find on the
Internet. You might cause someone unnecessary pain or set your business up for
a court visit.