CONVICTED? NEVER CONVICTED.

Note: This article was originally posted in 2014. It has been updated with new information.

Owning a business investigation company we often had clients who would come to us to perform self-background checks. They had had an indiscretion long ago and wondered if it would appear during an employment background check. Or they had records expunged and wanted to make sure that searches would not reveal the records. Every now and then we would find records that the client swore had been expunged.

The search techniques used and the diligence of the background check company can often uncover records thought to be vaporized by the delete key. As records become more digitized it is increasingly more difficult to erase yourself from the digital world. Just like the picture from a sophomore year party that a friend posted on your favorite social media page, once it’s out there-it’s out there. Removing it can be difficult and time-consuming.

EXPUNGED?

Similar to those unwanted pictures, records of your past, even expunged records, can be found in the digital world. The legal term “expunged” has different definitions in different States. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed” but the other details of the case are the same. In Maryland, it means to remove from public inspection. Although records are expunged, they are filed somewhere.  

Once you receive an order to have your record expunged and it is served, the judicial system possessing the record will remove it from its online court access. Anyone searching your name would not see the record. Contrary to what the fast working TV detectives would have us believe, there is not one government sourced database of 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, to which only law enforcement has access. See “National” record checks  Third-party vendors must rely on court reported data offered by State and local governments. 

As with your personal information and shopping habits, court data is downloaded, bought, and sold every day. Vendors collect the data from several sources. As the data is shared and stored and stored again it ends up in narrower access points allowing for the production of a single report.  If the vendor then resells that report, the record moves to another database. You get the idea. Just like the unwanted picture, although expunged from the government files, your record is sitting in who knows how many vendors databases waiting to be accessed.  

REMOVING THE RECORD 

The criminal record you had expunged was downloaded, bought, shared, compiled, stored, all the digital speak long before the record was expunged. The best, and least expensive, way to rid the record from existence is to deal with the source vendor directly. Most companies that deal with personal information are forthright about the data that they dispense and pride themselves on the accuracy, which means they are more than willing to help. Sending them a copy of the expungement order along with a request to have the record removed usually will suffice. The problem is finding all the places where the record is stored. This can be a tedious and long process for the individual. There are companies that will chase the record and do the work for you, but of course, fees are involved.

DISCLOSURE

Cities and states throughout the U.S. have enacted laws banning the criminal history question from employment applications. See Ban the Box 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years (Previously was five). Also, employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

The bottom line is, job seekers cannot be 100% sure that an expunged record will not turn up in a background search. If unsure, be honest about the existence of a record with the requester. Provide copies of the expungement order when the record is requested. However, know your rights within your state and handle the criminal records question per the law. You may not be required to answer.

Refer to the blog archive for more articles about criminal records in Employment

Experience v. Youth

Speaking to a friend about retirement she told me that she had a few more years to go. She wanted to get her financial foundation a little sounder before making the decision. She went on to say that she recently received a retirement assessment package from her employer outlining her current and future pension options. The package was personally addressed and written as a response to her inquiry. The thing was, she hadn’t made an inquiry. As time went by she heard from other employees similar to her age and seniority who had also received their “requested” retirement materials. When it came to hiring and promotions of late there appeared to be a bias towards younger people. Was the company sending a message with the retirement package mailings?

It is not unheard of. Some corporations feel older employees are more expensive due to their salary and benefits. Younger, newer hires do cost companies less money. They can be hired for a substantially less salary and are willing to accept it. Many companies are eliminating pension programs, instead, offering new employees 401(k) matches and other savings programs. Saving the company money in the long term. Companies embracing a youth movement are looking for new ideas from employees who are more familiar with current technology. 

Targeted “retirements”

In March 2018, ProPublica, an independent non-profit newsroom, published a report claiming that IBM systematically laid off 20,000 employees age 40 and over between 2013 and 2017. Up into the 1980s, IBM was the technology giant. As the technology rapidly changed over the next twenty years and companies like Apple challenged IBM, they were faced with a massive and aging workforce. To compete, IBM felt that they needed to reduce their workforce and begin hiring younger, more tech-savvy employees.

ProPublica’s investigation revealed, in part, that IBM devised performance point-rating systems that favored younger employees with fewer years on the job. Older employees were rated as their skills being out of date. These employees were offered retirement packages or were relocated to an office across the country with the ultimatum to move or retire.

The Older Workers Benefit Protection Act (OWBPA) was passed by Congress in 1990. The OWBPA prevents employers from discriminating in benefits based on age, firing only older workers when cutting staff, or demanding that older workers waive rights and without taking safeguards into consideration. However, the burden of proof is on the employee to show that the company let them go based solely on age. Without records, overt acts, or documentation this can be difficult for an individual employee to prove. In the IBM case, the corporation went so far as to have employees who accepted packages to sign agreements that they would not take part in any future class actions.

But what about experience? 

Is it worth pushing out experienced workers to make room for youth? Does cost cutting make up for the loss of institutional knowledge? Older employees have a lot to offer. They’ve been with the company through thick and thin. They are able to mentor younger employees in systems and procedures. Historically, older employees are dedicated to doing the best possible job and are often the ones who find and correct errors. Errors that could cost the company lots of money if overlooked. While a new set of eyes is always welcome, past experience can sometimes save hours of work that will eventually end up at the same conclusion.

Savings?

Cutting bloated salaries and benefits might sound good but the overall cost of turnover may not justify it. Jack Altman, CEO of Lattice, posted an article in the Huffington Post in January 2017, How much does employee turnover really cost? Altman cites research by the Center for American Progress who determined that the average economic cost to a company of turning over a highly skilled job is 213% of the cost of one year’s compensation for that role. He uses the following example, ”If you are a 150 person company with 11% annual turnover, and you spend $25k on per person on hiring, $10k on each of turnover and development, and lose $50k of productivity opportunity cost on average when refilling a role, then your annual cost of turnover would be about $1.57 million.”

Altman summarized by saying that companies should analyze four major areas:

·       Cost of hiring

·       Cost of onboarding and training

·       Cost of learning and development

·       Cost of time with an unfilled role

He also provided this link to Calculate the Cost of Employee Turnover for yourself. 

The quick decision to cut costs through salary and benefits should be closely examined. There are not always textbook answers to everyday issues. You need veterans of your business to lead and show the way. 

Cleaning Up Your Online Presence

Ever been asked at checkout for your phone number? You haven’t been in the store for a long time, if ever by your recollection, but the clerk wants to know if you’re in the system. You provide a phone number and surprise surprise you are in there! Phone number, name, and address. It’s probably not a retail conspiracy to create a super database of shared data. What it does reveal is how our lives and personal data are intertwined within the world of information.

When information was written on paper there was less of it and it was more fragile. Tear it up, burn it, poof it’s gone. Carbon paper, mimeographs, and copy machines (Younger readers will have to look those up) changed that. Documents were being copied and filed in triplicate. Computers, of course, made it all easier but it wasn’t until the ol’ World Wide Web came along that hiding in plain sight became difficult.

In the old days it was easy to disappear. You simply moved to another town. Started using a new name and slowly built your new persona. As technology progressed information began being stored on computers. Those computers could be accessed for information stored about you, but only for the specific information the entity had stored. Once computers became connected one entity could access another’s information. Then they began sharing information between each other and saving the data locally. The more digitally involved you are the bigger your online presence. As young people enter adulthood they have little to no digital footprint in the context of financial databases. What they do have is a social footprint, more on that later.

Google yourself

Have you ever searched your name? If not, give it a try. You might be surprised what pops up or how many of you are out there. The more you are in the public eye the more information that is going to be out there and, thus, the harder to clean up your online presence. A regular Joe should have limited occurrences as the result of a search. But even regular Joe’s can have an online presence depending on their interaction with social sites and images associated to their name. And that is what you need to be controlled.

Information for sale

Think about the seed system of a watermelon. You can take out a portion from the middle, but there are going to be all those strands extending throughout the melon. That is how it is in the digital world. Things truly do live forever on the Internet. You can have a record expunged from a database, but any reference to or sharing of that record in other databases is going to give it new life. Data has become a big commodity. Everything is for sale on the Internet. Data is being collected on every interaction you have on the Internet. The data collected by brick and mortar businesses is sought after. Once government databases went online (real estate, court information, etc) information brokers snatched up this data. All of this information is bought and sold and resold. The original purveyor of the data may have deleted it but the new entity has it saved and published it their own way.

Everyone that has data is looking for revenue sources, especially governments. Data mining companies buy data from phone companies (landline and wireless) and the government (real property and court records). The information is legitimately offered for sale on the Internet through pay sites or resold. Ever get those mailings and wonder how Joe Realtor knows how long you’ve lived in your house and what you can sell it for?

Your Job image

Younger people may not be in databases for real estate or financial institutions but they are using social media and sharing the media. Even someone with little life experience will pop up in a simple Google search, most likely under images. This is what haunts the 20-somethings when they start their job searches. Over the last few years’ different surveys have revealed that 40% of college admission offices and 40% of HR professionals research social media regarding applicants. Staying aware of your online presence is especially import when trying for a job.

Cleaning up online presence

You’re first step should be stop the flow of information. Review and change your social media privacy settings. Remove information from online shopping and other accounts that are old or unnecessary.

Whether it’s the garage, the basement, or the Internet before starting any clean up job you have to assess the situation. Start by searching your name and then different variations with your name, town, occupation, and any other identifier that you feel has a strong attachment to your name. Would suggest using Google as it is the most powerful, but using other search engines wouldn’t hurt. You’ll probably get different results.

Make note of the sites in which you pop up and what they are referencing. Find the source of the material you want removed and contact the source directly. Many will want sound reasoning why the post/picture should be removed. May want to read the companies privacy statements before you make the call to know where you stand and/or how to make the request.

Even though the source removes the post once it has been shared it lives on in other sites. You’ll have to track the posts digital trail and contact those companies as well. The tedious part is finding every link that’s associated with your name and going through the process each time. As with any situation where you are fighting an issue Document Document Document. Keep copious notes of your efforts in case you need to prove your attempts later or make subsequent requests.

After all that you are still going to be able to “find yourself” on government public access sites like real property and courts. People search sites and phone number search sites sell the information you are trying to keep private. Matters of public record like newspaper articles in which you’ve been mentioned are going to pop up.

To get your name removed from marketing lists there are organizations that can help. Similar to the national do not call registry, these services allow consumers to opt of marketing offers. You would be adding your name to another database, which may be counterproductive to what you’re trying to accomplish, but it does keep marketers from contacting you. Maybe. Who knows if it really works?

One such service is run by the Direct Marketing Association and allows consumers to have their names and addresses removed from direct marketing mailing lists. There is a fee-$2 for 10 years if you register online. The site can be found at www.dmachoice.org. The second removes the consumer from credit card and insurance offers. The service is provided in a joint venture between Experian, Equifax, Innovis, and Transunion. The site can be found at www.optoutprescreen.com.

You won’t be able to eradicate everything. If you’re serious about removing yourself from the Internet you’ll have to have as much as possible redacted. The rest will have to get buried in the voluminous amount of data filling the Internet. The less that is out there the more specific the search will have to be to find you. Not gone but harder to find.

Your personal information may be in myriad retail databases but at least you can try to keep what others read about you to a minimum. You can’t just completely disappear but can clean up your online presence so that you’re not easily searched.

See our blog archive for more posts about online presence.

Should social media rants get you fired? March 2017

Social media checks July 2016

Convicted? Never convicted October 2014

Frequently Asked Questions

During my time providing investigative services to businesses the same questions regarding pre employment screenings and background checks were repeatedly asked. To address those questions, we developed a list of frequently asked questions, which are shared below. I hope this will help answer questions you may have and guide you through the hiring process.

·      What are an employer’s legal obligations?

• Fair Credit Reporting Act (FCRA). As of October 1, 1997 the FCRA requires that all employers who request background checks for pre employment screening purposes have a written consent from the applicant. 
• Civil Rights Act of 1964, Title VII. 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.
•  Equal Employment Opportunity Commission (EEOC. The EEOC is 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 groups and thus cannot be used in this way.”
• National Labor Relations Act (NLRA) was enacted in 1935. The Act allows for the National labor Relations Board to enforce laws that give employees the right to act together for improved pay and working conditions, even if they are not part of a union. 

·      What is a “National” record check?

• We were always asked to conduct 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. Conducting a non-law enforcement national background check would be better said as a “nationwide” check. To obtain a thorough picture of a person’s criminal past, all levels of government entities maintaining criminal records should be searched. Read our post "National" record checks, which further explains the subject.

If there is no national database, how do you get the most detailed information?

• Look for companies that search both public and commercial databases within the Federal, State, and County jurisdictions. Analyzing the information to ensure the utmost accuracy for your screenings.

·      What is “Ban the box”?

• Ban the box is national grassroots movement to remove the question, “Have you ever been convicted of a crime” from employment applications. Many State and local jurisdictions have passed laws removing the question from government employment applications.

·      What is Bright line hiring?

•  “Bright line” is a clearly defined rule or standard, generally used in law, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application. 
• A Bright line hiring example would be to not hire someone with a criminal record. Bright line hiring practices are dangerous for any business, as you may have violated the Civil Rights Act of 1964 or EEOC guidelines.

·      Can expunged records be located?

• Sometimes. The legal term “expunged” has different definitions in different states. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed”, but the other details of the case are the same. In Maryland, it means to remove from public inspection. 
• Although records are expunged, they are filed somewhere.  Third party vendors purchase data from government entities before records are expunged. They then resell that data. Although records get expunged, they remain active through third party vendors.

·      Why should I do pre employment checks?

• Avoid the expense of making a bad hire. Bad hires can cost as much as three times the salary of the job in question
•  Reduce liability: Putting current employees at risk by placing a violent person in the workplace.
• Find those with a propensity for violence. Workplace violence has been found to make up 18% of all crime.
•  Reduce of workplace accidents
•  Reduce resume puffing. One-third of resumes have some degree of puffery
•  Aid the applicant. During the process other names associated with the applicants’ social security number are regularly discovered. This information may help the applicant thwart identity theft.

·      Why can’t I just do checks myself?

• You can and many do. The Internet is a very powerful tool. The questions are: Do you have time? Do you know where to look? Do you know how to decipher the information you do find? Are you sure you are looking at the correct person?

See our blog archive and topic categories for more on this topic.

How well do you know someone? March 2017

Social Media Checks July 2016

FCRwhat? March 2015

Just checking local Internet records not enough December 2014

Convicted? Never convicted. October 2014

Have you ever been convicted of a crime? February 2014

What is the price of not doing a background check July 2013

"National" record checks April 2013

Ban the box

How well do you know someone?

Watching the vetting process for the new presidential cabinet you heard politicians and others vouching for the nominees.  They would qualify their knowledge of the person’s background by stating how long they’ve known the person, “I’ve known this person for five years.” Really? Five whole years?

There is the possibility that you can really get to know someone in a short span of time. But it is highly unlikely, especially if you’re not with the person 24/7. There have been incidents of husbands and wives, who have been married for more than a decade, not knowing of the others “secret” life. So how can you vouch for a person, you have known for five years, and periodically interact with? 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.

Then you have the now cliché neighbor of a crime suspect, “[He’s] always been a good neighbor. Quiet. Never bothered anyone.” Chances are the neighbor is basing their assessment on fact. They never really knew the suspect so, of course, they were quiet and never bothered anyone.

If a background investigator has ever contacted you regarding an investigation for a security clearance how well you know someone can become shockingly evident. People obtaining security clearances fill out a questionnaire, part of which includes references. These references have to be non-work, friends and neighbors. Sometimes you have no idea why your name was used. You hardly know the person. But sometimes the investigation is for someone you’ve “known” for ten or more years (Most backgrounds require the reference to be a person you’ve known for five or more). But you don’t hang out with them, you don’t interact socially, you lose touch. But here is your name as a reference. The investigator starts asking the standard questions and you realize that although you’ve known this person since college, you cannot provide one piece of information that can verify anything about the person’s proclivity for cheese or espionage.

So to stand before a congressional committee and state that, “I’ve known this person for five years and they have absolutely the best character”, is little bit of a stretch.

See our blog archive for other posts relating to character association: 

Don’t want to know July 24, 2013

Have you ever been convicted of a crime February 3, 2014

Social media checks

Background checks use to be associated with financial institutions during applications for loans. Now they are performed during job applications, college admissions, even dating sites. One of the most important parts of the background check is the character reference. References were historically performed by field investigators interviewing the person’s friends, neighbors, associates, coworkers, etc. This is still an integral part of checking someone’s references, but in today’s online all the time society, social media is fast becoming the standard.

Who’s looking?

Private employers are. Social media checks are now on the checklist during candidate research. HR hiring surveys estimate that more than half of employers search an applicant’s social media during the hiring process. The New York Post reported on January 29, 2016, that at least 40% of college admissions officers report they check applicants’ Facebook pages and other social media when weighing who should get accepted. A third say they Google applicants. Even professional sport franchises do their due diligence when deciding on draft picks. As part of the vetting process, social media of potential draftees are reviewed. With the media attention on football players gone wild in recent years, franchises are doing every thing they can to determine the character of the player they are drafting.

Now the federal government is getting into the game. Investigators will now be probing social media as part of background checks for security clearances. Seems far-fetched that federal investigators didn’t perform these checks in the past, but now it’s official. On May 13, 2016, Director of National Intelligence James Clapper signed a policy directive that allows investigators to collect publicly available social media information pertaining to the person whose background is being investigated. In a press release, Bill Evanina, Director of ODNI’s National Counterintelligence and Security Center stated, “We cannot afford to ignore this important open source in our effort to safeguard our secrets—and our nation’s security.” While federal investigators are prohibited from requiring or requesting applicants’ password information, they will be searching for publically accessible accounts.

Privacy concerns

States and the Federal government have responded in a challenging effort to protect citizens’ privacy and rights. Twenty-three states have enacted laws that prevent employers from requesting passwords to personal accounts to either apply for or keep a job. Maryland was the first state to enact such a law, which took effect on October 1, 2012. Maryland’s law states that employers may not require employees or applicants to disclose a user name, password or other means of accessing a private Internet site or electronic account.

The Equal Opportunity Employment Commission (EEOC) and National Labor Relations Board (NLRB) regulate, monitor, and enforce employer misuse of social media during the hiring process. Since 2010, the NLRB has heard dozens of cases regarding employers infringing on employee rights through social media. Both the EEOC and the NLRB have issued guidance to employers regarding social media rights of employees.

Does your mother see your posts?

Whether you’re currently looking for job or suddenly need a clearance, you never know when a situation will surface that requires a background check, which will now more than likely include social media checks. As we are seeing, the trend is spreading beyond dating sites to employers, college admissions, pretty much anyone who wants to know more about who you are. A picture truly is worth a thousand words.

Getting a lot of ambiguous rejections? Check your social media posts.

Even social media posts from years ago can haunt you. During the 2016 NFL draft, a potential first round pick had his Twitter account hacked.  A years old video showing him allegedly smoking marijuana with a bong hit the web. As this sorted out, draft round after round passed. He eventually was chosen in the thirteenth round, costing him millions.

Because of the anonymity of the Internet, the narcissist in us all, and the instantaneous culture we have, social media seems to be a window into our daily lives. Not only what cat videos we find hilarious or what we’re eating and where, but social media goes a long way in determining who we are, the character of the person doing the posts. Now one could argue that it’s not how they really are, that they use social media as an alter ego. But over time, patterns do develop and the onus appears to be on the account holder to justify the veracity of their posts and not the reviewer.

A good rule of thumb is-If you wouldn’t want your mother to see it, then don’t post it.

See our blog archive for other posts relating to social media:

What’s your social media policy? March 22, 2016

Enforcing company policy May 8, 2015

Convicted? Never convicted. October 17, 2014

A good interview

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. 

Criminal record 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 the dice. 

• Fully 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.
• The 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.
• Maryland 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 character.

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

FCRwhat?

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 questions
• Failure to provide proper pre-adverse action and/or adverse action notices
• 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 groups and 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.

Scroll through our Information and Resources page regarding the FCRA, EEOC, and for helpful information.

Internet intelligence

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 Internet

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 someone?

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.

Mazzella Investigative Solutions-Services 

Just checking local Internet records is not enough

Service industries that put employees in personal/private contact with clients and/or a client's property are being scrutinized for not only failing to conduct background checks but for doing them improperly. Most recently a national ride sharing company received criticism for both. At first, the company was not screening its drivers, which resulted in employing drivers with violent criminal pasts and questionable driving records. They upgraded their screening process, however, the background investigations were not thorough. Checks were only being made for in State violations with no verification of the person’s identity or the records.

This is just one example of a service industry company not ensuring they have a proper screening process. With Internet access to almost anything, most small employers try to do the background screenings themselves, only checking the local records for which they have access. This is not a thorough background investigation. Much can be missed. Records can exist in all States, at all levels of jurisdictions. Matching records to employees and understanding what the records mean are paramount. (What is the price of not doing a backgroundcheck? July 9, 2013)

Employers need to make sure that their vendors are checking all jurisdictions where the employee lives or has lived, backing up the findings with court records, and verifying that the record is actually that of the employee.

Don’t risk your business by taking shortcuts.

Mazzella-Investigative Solutions

What not to wear

The examination of the California tech explosion of the 1990’s introduced the world not only to the “dot-com” industry but also to casual business attire. The staunch days of business suits gave way to casual Fridays and in some cases, casual every days. Businesses began to realize that employee’s did not have to dress formally for work, especially if they didn’t leave their desk or interface with clients. 

Dress codes

Some businesses have formal dress code policies. Most have some sort of rule, either for safety of image, which is conveyed to employees. The way employees dress and present themselves represents the company’s image. But, if the company does not provide clothing for a uniform way of dressing, then there has to be a policy to ensure the desired image is presented.  Companies can delineate what that image will be.

As the workforce and upper management become younger, dress codes have been relaxing. The business acumens regarding formality and attire are becoming more casual on a daily basis. Formal dress around the office isn’t seen as necessary to completing tasks. A Harvard business school study indicated that dressing down and standing out may offer an air of influence. In retail, luxury store sales staff perceived shoppers dressed in sweats as being more willing to buy than shoppers who wore fancier clothes. The refreshed policies are more about being effective rather than the way one looks.

When policies are written they have to consider other areas of appearance as well as clothing. There’s make up, earrings, piercings, and tattoos. In more recent years policies must also consider religious garb and grooming.

Religious reasons

Dressing a certain way for religious reasons has further defined office dress codes. Employer policies have been tested and the issue has been through the courts. The Equal Employment Opportunity Commission (EEOC) in March published a fact sheet and a Q&A to address employer concerns with dress codes. Under Title VII of the Civil Rights Act of 1964, employers must make allowances to permit employees to follow religious dress and grooming practices. The EEOC guidance on Religious Garb and Grooming can be found on the Information/resources page of our website.

Having clearly defined and fair policies regarding employee dress provides for a congenial work environment and protects your business.

www.mazzellainvestigations.com/informationsresources.html